PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2003090561


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deborah Brantley .		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. N. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that the decision to place his name on the TDRL (Temporary Disability Retired List) be rescinded and that he be restored to an active duty status effective 29 March 2003 with restoration of all pay and entitlements.

3. The applicant states that at the time his name was placed on the TDRL his “immanent death” was expected. However, since his evacuation to Walter Reed Army Medical Center his medical condition has drastically improved and his prognosis for a full recover is excellent. He notes that he has served his country honorably for more than 11 years, believes he is, and will continue to be, an asset to his unit and to the Army, and that placement of his name on the TDRL has created an undue financial hardship on him and his family. In support of his request he submits statements from members of his chain of command attesting to his “unprecedented recovery” and his dedication to continuing his military career. He also submits a copy of a statement from his surgical care physician at Walter Reed Army Medical Center.

4. Information available to the Board indicates that the applicant entered active duty in July 1991. He was 18 years old at the time and initially completed training as a pharmacy specialist. He subsequently completed training in the Special Forces arena and in June 2001 he was assigned to the 2^nd Battalion, 7^th Special Forces Group, located at Fort Bragg, North Carolina.

5. In October 2002 the applicant deployed to Afghanistan in support of Operation Enduring Freedom. He was promoted to pay grade E-7 on 1 January 2003 and on 11 February 2003, while in the overseas theater of operations, executed an indefinite reenlistment contract.

6. According to information received from the Army’s Casualty and Memorial Affairs Operations Center, the applicant was wounded as a result of hostile fire in Afghanistan at approximately 1010 hours (local time-0040 EST) on 29 March 2003. A member of the applicant’s chain of command confirmed the date of the applicant’s injury. The casualty document indicates that the applicant was wounded along with two other military members and that there was some initial confusion over the names of the individuals who were wounded. However, the applicant was consistently reported as being “SI” (seriously ill) throughout the casualty office’s staff journal which logged the times and dates of communications between various casualty reporting activities.

7. Documents executed by officers on the ground in Afghanistan, including the applicant’s attending physician, indicated that the applicant had sustained a gun shot wound to his chest during an ambush and that he was being medically

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evacuated to a treatment facility within Afghanistan. The Department of the Army Form 2984 (Very Seriously Ill/Seriously Ill/Special Category Patient Report), completed by the physician who initially treated the applicant, indicated that the applicant’s recovery prognosis was “expected” and although neither the “very seriously ill” or “seriously ill” block was marked, the “expected” recovery prognosis block was only an option available under the “seriously ill” category. However, in a handwritten medical notation, the applicant’s attending physician noted that the applicant “is in very grave condition” and “not expected to live.” The date of the statement was 23 March 2003 (sic) (should have been 29 March 2003) and indicated the applicant was “medivaced.” His pulse was recorded as 88, his respiration at 12, and his blood pressure at 103/40.

8. The applicant’s battalion commander confirmed in writing on 29 March 2003 the applicant’s injuries were incurred in the line of duty and no formal investigation was required.

9. According to information contained in the staff journal from the Casualty and Memorial Affairs Office, the applicant was medically retired at 0952 EST (1922 hours local time) on 29 March 2003. The documents placing the applicant’s name on the TDRL, including Medical Evaluation Board (MEB) Proceedings (Department of the Army Form 3947) were executed at the United States Army Physical Disability Agency located at Walter Reed Army Medical Center. The MEB proceedings were the first documents to indicate that the applicant’s death was imminent within 72 hours. The Physical Evaluation Board (PEB), convened at Walter Reed Army Medical Center, and noted that the applicant had sustained a “sucking” chest wound while on patrol “when ambushed by suspected Taliban fighters.” They noted the applicant’s “condition was grave” and that “death was considered imminent and soldier was not expected to live more than 24 hours.” The PEB concluded that the applicant’s “medical condition prevents satisfactory performance of duty” and that because the condition “has not stabilized to the point that a permanent degree of severity can be determined” they recommended his name be placed on the TDRL. The findings and recommendation of the PEB were approved and at 0953 hours EST, on 29 March 2003, the applicant’s name was placed on the TDRL with a 100 percent disability rating. As a result of the applicant’s placement on the TDRL he would be entitled to monthly compensation amounting to 75 percent of his retired base pay. The retired base is computed on 1/36 of the total amount of monthly basic pay (which excludes allowances such as housing or rations) received for the high-36 months of active duty.

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10. The applicant’s spouse, located in Fayetteville, North Carolina, was notified of the applicant’s condition on 29 March 2003 at 1650 hours EST. As of 1900 hours 29 March, the applicant was still being reported as “seriously ill.”

11. According to telephonic information received from the applicant’s battalion commander, the applicant was medically evacuated from Afghanistan to the military hospital in Landstuhl, Germany on 30 March 2003.

12. At 1451 hours EST on 30 March 2003 an official from the Army’s Casualty and Memorial Affairs Office confirmed with a representative at the Landstuhl military treatment facility that the applicant’s condition was still being reported as “seriously ill.” The applicant’s condition was not downgraded to “very seriously ill” until 0808 hours EST on 31 March 2003 after he had undergone a successful surgery.

13. The applicant was transferred to Walter Reed Army Medical Center on
4 April 2003 and by 30 April 2003 the applicant’s attending physician indicated that the applicant should “be able to return to some duties in the next 60 days or so” and was expected to “reach the fullest point of physical recovery as an outpatient within the next 6 to 9 months….”

14. According to the applicant’s battalion commander, the applicant was released from the hospital on 21 May 2003 and returned to his home in Fayetteville.

15. Department of Defense Instruction 1332.38 E3.P1.6.4 states that “when competent medical authority determines that a Service member’s death is expected within 72 hours, the member may be referred expeditiously into the DES (Disability Evaluation System). To protect the interests of the Government and the Service member, disposition shall be placement on the TDRL, provided all requirements under statute, law, and regulation are met. In no case shall a Service member be retired after his or her death or before completion of a required line of duty determination.”

16. Information received from the Army’s Physical Disability Agency noted that in most cases when death is imminent, retirement for physical disability provides greater benefits than if death occurs on active duty. In particular survivors of soldiers who die on active duty are not entitled to benefits under the Survivor Benefit Plan (SBP) unless the soldier had at least 20 years of federal service. The information from the Physical Disability Agency also notes that no regulatory or statutory requirements can be omitted or accomplished after the soldier has died.

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17. Under the normal imminent death processing procedures established by the Physical Disability Agency, expeditious processing is not warranted based solely on the diagnosis of a terminal illness or the risks associated with surgery. Expeditious processing is warranted only when the attending physician makes the prognosis that a soldier’s death is expected within 72 hours. In such cases, in simplified terms, the attending physician completes and signs the Narrative Summary (Special Form 502) and includes the statement that death is expected within 72 hours. The Deputy Commander Clinical Services, or his designated representative, ensures that the MEB is completed and approved. The PEBLO (Physical Evaluation Board Liaison Officer) provides information to the PEB to complete certain items on the Department of the Army Form 199, and the PEB adjudicates the case and ultimately renders findings and recommendation pertaining to the soldier’s medical conditions and disposition. Once the PEBLO has received the results of the PEB, either the soldier or the next-of-kin’s concurrence is obtained regarding the findings and recommendation of the PEB. If the soldier is deemed incompetent and the next-of-kin cannot be located, the Medical Treatment Facility Commander can make an election on behalf of the soldier.

18. Streamlined procedures for patients originating in the Southwest Asia Theater, as a result of combat or combat related operations, permits the attending physician in the theater to confirm the soldier meets the imminent death definition and then notify officials directly at the Walter Reed Army Medical Center. The attending physician is asked to provide the following:

         a) contact information
         b) hospital designation
         c) patient last name and first name
         d) social security account number
         e) unit of assignment
         f) rank
         g) home station
         h) preliminary diagnosis to include vital signs
         i) circumstances of injury
         j) Standard Form 502 (Narrative Summary)

The Narrative Summary must include the statement “death is expected within 72 hours.” Once completed the document can be faxed to Walter Reed Army Medical Center (WRAMC). Upon receipt a WRAMC physician will perform the initial notification of the next of kin and indicate that the MEB and PEB processing will be initiated at WRAMC. The WRAMC Medical Board Staff then completes all administrative requirements to process the MEB, brief the next of kin on the MEB/PEB process, coordinate with Army Casualty, and coordinate with the Washington PEB. Immediately after the case has been adjudicated, the Washington PEB will inform all concerned parties of the outcome.
CONCLUSIONS:

1. The evidence available to the Board does indicate that all parties involved in the expeditious processing of the applicant’s MEB and PEB did so with only the best intentions in mind and with the belief that what they were doing for the applicant was appropriate.

2. The Board notes that the attending physician, in the theater of operation, noted that the applicant’s prognosis for recovery was “expected.” However, the physician did note in a handwritten medical notation, that the applicant’s condition was “grave” and he was “not expected to live.” The Board concludes that the attending physician's checking of the block "expected" was a mistake. By all indications the applicant's condition was grave and his imminent death was expected.

3. Apparently, only by virtue of the excellent medical care the applicant received and his remarkable progress in recovery was his imminent death averted and his expected near term return to duty accomplished.

4. The Board concludes that the unique circumstances under which the applicant’s name was placed on the TDRL has in fact created an injustice which the imminent death processing procedure was ultimately designed to avoid. As such, the Board concludes that in this particular case the circumstances warrant that the decision to place the applicant’s name on the TDRL be voided, by declaring that discharge from the Army on 29 March 2003 null and void, and reinstating the applicant on active duty in pay grade E-7 without any loss of creditable service and with restoration of all rights and privileges, including all appropriate back pay and allowances.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a. by voiding the 29 March 2003 PEB action placing the individual’s name on the TDRL;

b. by declaring the applicant’s 29 March 2003 discharge from the Army null and void;

c. by reinstating the applicant on active duty in pay grade E-7 without any loss of creditable service; and

d. by restoring all rights and privileges, including all appropriate back pay and allowances.

BOARD VOTE:

__FNE__ __HOF__ _MJT___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Fred N. Eichorn___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090561
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.05
2.
3.
4.
5.
6.