RECORD OF PROCEEDINGS


	IN THE CASE OF:  	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070005017 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the spouse of the deceased former service member (FSM) requests correction of the FSM’s military records to show that he was still on active duty at the time of his death. 

2.  The applicant states that the FSM was on active duty on the day of his passing until the doctors anticipated his death.  The FSM was not mentally competent to accept the Medical Evaluation Board (MEB) Proceedings recommendation; therefore, an Army official accepted it on his behalf while the applicant was in route to the Walter Reed Army Medical Center.  The applicant further states that the FSM died on 6 August 2003 after a lengthy illness of neurosarcoidosis which was diagnosed in 1992 while on active duty.  The United States Army processed an imminent death medical retirement and placed him on the Temporary Disability Retired List (TDRL) on 6 August 2003, just hours before his death 

3.  The Imminent Death Retirement Policy was in place to facilitate medically retiring a Soldier, especially one not retirement-vested (less than 20 years of active service) in order for the surviving spouse to qualify for the Survivor Benefit Plan (SBP).  The requirement to be retirement-vested for survivors to qualify for SBP was changed on 28 December 2001 by Public Law 107-07, section 642, qualifying all survivors of Soldiers who died while on active duty for SBP benefits regardless of their length of active duty service. 

 4.  Because the United States Army erroneously and expeditiously medically retired the FSM, the applicant now is precluded from receiving this increased SGLI benefit.  The applicant also states that later legislation increased the Serviceman’s Group Life Insurance (SGLI) coverage from $250,000.00 to $400,000.00 for Soldiers who died on active duty during the period from 
7 October 2001 through 11 May 2005. 

5.  The applicant provides copies of the FSM’s Certificate of Release or Discharge from Active Duty (DD Form 214); retirement orders; MEB Proceedings (DA Form 3947) with Narrative Summary for Medical Board; death certificate; Report of Casualty (DD Form 1300); Certificate of Marriage; letter from the Office of SGLI; Policy/Guidance Memorandum Number 14, United States Physical Disability Agency; and a portion of Public Law 107-107. 




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. On 16 February 1982, the FSM enlisted in the Regular Army and served   through a series of reenlistments until he was medically retired due to physical disability on 6 August 2003.  He had attained the rank of sergeant first class, pay grade E7, and had completed 21 years, 5 months, and 21 days of creditable active service. 

3.  On 6 August 2003, an MEB was convened at Walter Reed Army Medical Center to evaluate the FSM.  The MEB found that the FSM suffered from sarcidosis and that death was imminent and anticipated within 72 hours.  The MEB further indicated that the FSM had suffered from this ailment since 1992.  The FSM was not present to provide views in his own behalf.  In Item 13 (Diagnosis) of the DA Form 3947 is the note: "Patient is not mentally competent at this time for pay and records."  The MEB recommended that the FSM be referred to a Physical Evaluation Board (PEB).  The findings and recommendation were approved by the Deputy Commander, Clinical Services, Walter Reed Army Medical Center.  This same individual also accepted on behalf of the FSM the placement of the FSM on the Temporary Disability Retired List with one hundred percent disability.  Item 30 (continuation) of the DA Form 3947 contains the entry: "I accept 100% TDRL on behalf of the patient.  Next of kin is in route.  There is concern of giving this information by cell phone while wife is traveling."

4.  The PEB proceedings are not available for review.  There is no available evidence showing that a PEB was convened.

5.  The Report of Casualty (DD Form 1300) shows that the FSM died as a result of cancer on 6 August 2003.  His status at the time is shown as TDRL, one hundred percent, 6 August 2003.  

6.  The FSM’s Certificate of Death, issued by the Government of the District of Columbia, Department of Human Services, dated 7 August 2003, shows that the FSM died at 11:12 p.m., 6 August 2003.  The cause of death is listed as sepsis due to or as a consequence of neurosarcoidosis.  

7.  Policy/Guidance Memorandum Number 14: Imminent Death Processing Procedures, dated 8 April 2002, in effect at the time of the FSM’s death, provided, in pertinent part:

a.  that commanders of Medical Treatment Facilities will continue to make elections to Physical Evaluation Board findings on behalf of the Soldier when conscientious attempts to locate the next-of-kin (NOK) are unsuccessful and documented, and that this policy would be followed only until receipt of pending guidance from the Department of Defense terminating the practice of imminent death processing.  

b.  that expeditious processing was not warranted based solely on the diagnosis of a terminal illness or the risks associated with surgery.  Expeditious processing was warranted when the attending physician made a prognosis that the Soldier’s death was expected within 72 hours.  

c.  that the circumvention or omission of statutory or regulatory requirements for disability retirement in the interest of timely processing was prohibited.  Before disability retirement was to be accomplished, the Soldier, of the NOK, as applicable, must receive counseling comparing the financial benefits between death on active duty and death in retired status; concur with the MEB and PEB; and concur with the expeditious processing. 

d.  that the only exception provided was that the Commander of the Medical Treatment Facility (MTF) may make the election to PEB findings and recommendations on behalf of the Soldier when the NOK cannot be located.

8.  The National Defense Authorization Act for Fiscal Year 2002 provided in Public Law 107-107, Section 642, for a surviving spouse annuity when a service member died in the line of duty, on active duty, even if the service member had not completed 20 years of active service.





DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the imminent death processing procedures were not properly followed in this case and have resulted in an injustice to the surviving spouse.

2.  In this case, the MTF commander did not have the authority to act on behalf of the dying Soldier because he knew where the next of kin was located and should have provided her with the required counseling and information for her to make the decision.  It appears that the Soldier’s retirement was done in the interest of expediency, and was processed in a manner contrary to the governing policy.  As a result, the surviving spouse has been unjustly denied her rightful SGLI benefit.   

3.  In view of the above, the applicant’s request should be granted.

BOARD VOTE:

__DAC___  __QAS     __JCR__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  voiding the FSM’s physical disability retirement on 6 August 2003; showing  that the FSM died while still on active duty; and providing all corrected documentation to the applicant and appropriate governmental agencies.  





__     Jeffrey C. Redmann______
          CHAIRPERSON

INDEX

CASE ID
AR20070005017
SUFFIX

RECON
 
DATE BOARDED
20070920
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.