IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080007450 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the records of his deceased wife, a former service member (FSM), to show that her servicemember's group life insurance (SGLI) policy remained in effect after her honorable discharge from the Army, and payment of SGLI benefits as a result of her subsequent death. 

2.  The applicant states that:

	a.  in January 1998, the FSM noticed a lump in her right breast.  She subsequently visited Darnell Community Hospital at Fort Hood, Texas, where she was told it was only a cyst and that she should not worry about it.  The radiologist remarked in her records that there was "Ropy Mass" in her right breast and that it would be removed within two weeks of that visit; 

	b.  the FSM was discharged from the Army in July 2001; however, a year later, the same lump started to bother her, so she visited the Department of Veterans Affairs (DVA) hospital in Alexandria, Louisiana, where doctors informed her she had breast cancer.  The DVA subsequently awarded the FSM a 100 percent service-connected disability rating;

	c.  the FSM was treated with chemotherapy and radiation in the next two years and was in constant pain.  She and the applicant filed a malpractice law suit against the U.S. Army, but that it was dismissed by a federal court.  The FSM subsequently died on 26 December 2004;

	d.  the FSM did not keep her SGLI at the time of her discharge since she did not know of her terminal cancer.  Had she been told of this condition, she would have kept her SGLI and her premiums would have been waived since she should have or would have been discharged at 100 percent disability rating; and

	e.  SGLI benefits should be reinstated and the beneficiaries under that policy should be paid. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 July 2001.

	b.  U.S. District Court, Western District of Lafayette, Louisiana, Petition for Wrongful Death and Survival Action Under the Federal Tort Claims Act, dated 29 March 2006; Voluntary Motion to Dismiss, dated 2 February 2007; and Judgment of Dismissal, dated 5 February 2007.

	c.  FSM's Medical Summary, dated on miscellaneous dates from 1998 to 2003.

	d.  FSM's miscellaneous medical records from military and civilian hospitals and clinics, dated on miscellaneous dates. 

	e.  DVA rating Decision, dated 23 April 2003.

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.  The FSM's records show she enlisted in the Regular Army for a period of 6 years on 19 November 1996.  She completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  She was also trained in and awarded MOS 91K (Medical Laboratory Specialist).  The highest rank/grade she attained during her military service was specialist (SPC)/E-4.

3.  The FSM's awards and decorations include the Army Lapel Button, the Good Conduct Medal, the Army Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 17 February 1999, the FSM was involved in a traffic accident at Fort Hood, Texas.  She was hit in the back of her legs by a vehicle and landed on top of the hood and hit the back of her head.  Her injury was determined to be in Line of Duty.

5.  On 30 November 1999, an MOS/Medical Retention Board (MMRB) convened at the 13th Corps Support Command (COSCOM), Fort Hood, Texas, to evaluate the FSM's ability to perform the physical requirements of her MOS.  The MMRB recommended a probationary period of 180 days of appropriate rehabilitation or physical therapy and referral to a Medical Evaluation Board (MEB).  The findings of this MMRB were subsequently approved on 30 November 1999.

6.  On 8 March 2001, an MEB convened at Fort Hood, Texas, to evaluate the FSM for her chronic low back pain, early degenerative joint disease of the lumber spine, and mood and anxiety disorders secondary to her chronic lower back pain. The MEB recommended the FSM be referred to a Physical Evaluation Board (PEB).  The FSM indicated that she did not desire to continue on active duty.

7.  On 10 April 2001, an informal PEB convened at Fort Sam Houston, Texas, to evaluate the FSM's medical condition.  Using VASRD (Veterans Administration Schedule for Rating Disabilities) Codes 5299 and 5295, the PEB determined the FSM suffered from chronic low back pain and coccydynia.  The PEB further determined that she was ratable at 10 percent disabled and that the proper disposition should be separation with severance pay.  The FSM did not concur with the determination.  She further requested a formal hearing and submitted a rebuttal letter in support of her disagreement.

8.  On 16 May 2001, a formal PEB convened at Fort Sam Houston, Texas, to reevaluate the FSM's medical condition and her rebuttal statement.  The FSM and her counsel were present throughout the hearing.  Using VASRD Codes 5299 and 5295, the PEB, again, determined the FSM suffered from chronic low back pain and coccydynia.  The PEB further determined that she was ratable at 10 percent disabled and that the proper disposition should be separation with severance pay.

9.  On 5 June 2001, by letter, the U.S. Army Physical Disability Agency notified the FSM that her case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES).

10.  On 31 July 2001, the FSM was honorably discharged by reason of disability with severance pay in the amount of $15,762.00.  The DD Form 214 she was issued shows she was honorably discharged in accordance with paragraph       4-24B(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability/severance pay.  This form further shows she completed 4 years, 8 months, and 12 days of creditable military service. 

11.  Subsequent to her discharge, the FSM underwent other procedures in civilian medical facilities as well as DVA clinics, including biopsy of the right breast.  The results of the biopsy, dated 21 June 2002, indicated the FSM suffered from infiltrating malignant tumor, ductal Aden carcinoma clusters of malignant cells, and tumors at the edges.  

12.  On 23 April 2003, the DVA awarded the FSM a 100 percent disability rating due to her back condition.

13.  The FSM died on 26 December 2004.

14.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for: enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.

16.  Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  Part 4 of paragraph 4.1 of the VASRD, states that the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such disease and injuries and their residual conditions in civil occupations.

17.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

18.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the DVA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  A common misconception is that veterans can receive both a military retirement for physical unfitness and a DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the DVA pension and military retirement.

19.  SGLI is a program of low cost group life insurance for servicemembers on active duty, Ready Reservists, members of the National Guard, members of the Commissioned Corps of the National Oceanic and Atmospheric Administration and the Public Health Service, cadets and midshipmen of the four service academies, and members of the Reserve Officer Training Corps (ROTC).  For military personnel, SGLI is recorded on SGLV Form 8286.  The SGLI program is a Department of Veterans Affairs program.  Only certain portions of the program, such as preparing the SGLV 8286 and collecting premiums are administered by the military services.  This insurance is granted under the SGLI provisions of Title 38, United States Code, and is subject to the provisions of that title and its amendments, and Title 38 Code of Federal Regulations.  The SGLV form must be correctly completed, signed, and received by Service before death in order for the designation on the form to be valid.  SGLI is in effect throughout the period of full-time active duty or active duty for training.  Coverage is also in effect on a full-time basis for reservists who are assigned to a unit or position in which they may be required to perform active duty or active duty for training and each year will be scheduled to perform at least 12 periods of inactive duty training that is creditable for retirement purposes under Chapter 1223 of Title 10, United States Code.  SGLI coverage continues for 120 days following separation or release.

20.  When naming a beneficiary, a new SGLV-8286 must be completed to change a beneficiary.  A Soldier may name anyone as beneficiary without his/her consent.  The Servicemembers' and Veterans' Group Life Insurance Handbook states in paragraph 6.02d, that SGLI and VGLI are federal programs and operated under federal law.  Under federal law, the insured has the absolute right to name and change the beneficiary at any time without the knowledge or consent of a prior beneficiary.  However, effective 1 September 2005, a Soldier’s spouse must be notified if the Soldier elects to reduce coverage or to name a beneficiary other than a spouse.  If the beneficiary is a married woman, the woman’s given first and middle names are used.  A named beneficiary will NOT be changed automatically by any event occurring after completing this form (e.g. marriage, divorce, etc.).  The beneficiary cannot be changed by, and is not affected by, any other documents such as a divorce decree or will.  When naming more than four principal or contingent beneficiaries, the additional beneficiaries are listed on the Beneficiary Continuation Form.  The block under the principal or contingent blocks on page 2 must be checked, indicating that a Soldier has done so.  The Beneficiary Continuation Form (page 5) should then be attached to page 2 of the 8286.  When naming minor children as beneficiaries, the insurance will be paid to the court-appointed guardian of the children's estate. 

21.  When naming more than one principal beneficiary and one or more predeceases the Soldier, the share(s) will be divided equally among the remaining principal beneficiaries, unless otherwise stated.  If there are no surviving principal beneficiaries, the proceeds will be divided among the contingent beneficiaries.  If no beneficiary is named, or if there are no surviving beneficiaries, or if the Soldier indicates that payment should be made by law, the proceeds will be paid in the following order: Widow or widower; Children in equal shares (the share of any deceased child will be distributed equally among the descendants of that child); Parent(s) in equal shares or all to surviving parent;  A duly appointed executor or administrator of your estate; Other next of kin.

22. Army Regulation 600-8-1 (Army Casualty Operations/Assistance/Insurance) states, in paragraph 11-29g, that the designation of all SGLI beneficiaries will remain in effect until properly changed by the Soldier or until the SGLI is automatically canceled or terminated.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's MEB and PEB properly evaluated her medical conditions and assigned the appropriate VASRD Codes then in effect.  The applicant was determined to be physically unfit with a disability rating of 10 percent.   It was recommended she be separated with severance pay.  At no time during her medical examination was she diagnosed with cancer.  As such, this condition was not evaluated by the MEB or the PEB. 

2.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The percentage of disability rating reflects the Soldier's physical condition at separation and that percentage is permanent.  Although the applicant has provided evidence that the FSM's physical condition may have deteriorated post-service, that evidence has no bearing on the decision of the PDES at the time of her PEB and discharge in 2001.

3.  With respect to SGLI, the FSM's record is void of a legible copy of her SGLV Form 8286.  Nevertheless, by law, SGLI is in effect throughout the period of full-time active duty or active duty for training and also continues for 120 days following the Soldier's separation or release.  Furthermore, a Soldier may convert his/her SGLI to Veterans’ Group Life Insurance (VGLI) within 120 days of separation without proof of good health, or within one year and 120 days of separation with proof of good health by contacting the Office of Servicemembers’ Group Life Insurance.

4.  The evidence of record shows that the FSM was discharged by reason of disability with entitlement to severance pay on 31 July 2001.  Her SGLI coverage would have continued for 120 days beyond her discharge date, 29 December 2001.  She died on 26 December 2004, some three years after she was no longer eligible for SGLI coverage.  Therefore, there would not have been any entitlements to SGLI benefits at the time of death.

5.  With respect to VGLI, a Soldier may elect to convert his/her SGLI to VGLI within 120 days of separation without proof of good health, or within one year and 120 days of separation with proof of good health by contacting the appropriate office.  Nevertheless, if the FSM converted her SGLI to VGLI at the time of discharge, the applicant is advised to contact the appropriate agency as this is outside this Board's purview.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


															XXX
      _______________________
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007450



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ABCMR Record of Proceedings (cont)                                         AR20080007450



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