IN THE CASE OF:	  

		BOARD DATE:	  7 July 2009

		DOCKET NUMBER:  AR20090002825 


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, through his Congressman, for extraordinary relief in the death of his wife, a former service member (FSM).  (This has been accepted as a request for reconsideration of the Board's denial of his request to show the FSM's Servicemembers Group Life Insurance (SGLI) remained in effect until her death.)

2.  The applicant states, through his Congressman, that an injustice was done to the deceased FSM when Army medical personnel misdiagnosed a "Ropy Mass" in her right breast which led to the cancer spreading until it was too late.  He continues in his statement by saying that he did not understand what the Army or Department of Defense meant when he was advised to seek "extraordinary relief" for the loss of his spouse, the FSM. 

3.  The applicant provides in support of his application a letter, dated 24 September 2007, from the commander of the U. S. Army Claims Service, Fort Meade, MD. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007450, dated 31 July 2008.

2.  The letter from the commander of the U.S. Army Claims Service, Office of the Judge Advocate General, Fort Meade, MD dated 24 September 2007 is the new evidence which requires the Board to reconsider the applicant's initial request.

3.  The FSM was evaluated for a lump in her right breast at Darnell Community Hospital on Fort Hood in February 1998.  The radiologist reported that ultrasound examinations further determined that the FSM had normal appearing fibroglandular tissue with no masses or cystic structures identified.  Court documents indicated that she was diagnosed with mastitis in March 1999.

4.  The FSM's military records show that on 8 March 2001, the MEB referred her to the PEB for chronic low back pain, early degenerative joint disease of the lumbar spine, and mood and anxiety disorders secondary to her chronic lower back pain. 

5.  On 16 May 2001, a formal PEB using the VASRD Codes 5299 and 5295 determined the FSM was physically unfit due to chronic low back pain and coccydynia (pain in the tailbone and adjacent area).  The PEB further determined that she was ratable at 10 percent disabled and that the proper disposition for her should be separation with severance pay.  

6.  The FSM was discharged by reason of disability with entitlement to severance pay on 31 July 2001.  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.  

7.  A further review of all available medical records shows that the FSM was not diagnosed with breast cancer during the MEB and PEB process.  As such, this condition was not evaluated by the MEB or the PEB. 

8.  A biopsy report, dated 21 June 2002, shows the FSM suffered from an infiltrating malignant tumor, ductal adencarcinoma with clusters of malignant cells, and tumors at the edges of her right breast.

9.  On 23 April 2003, the Department of Veterans Affairs awarded the FSM a 100 percent disability rating due to her service connected back injury and its subsequent deteriorating condition and its impact on her movement ability. 

10.  On 26 December 2004, the FSM died three years and five months after her honorable discharge on 31 July 2001 from the U.S. Army.   

11.  As new evidence for the Board's consideration, the applicant provided a copy of a letter dated 24 September 2007, from the commander of the U. S. Army Claims Service, Fort Meade, MD.  The commander acknowledged that the applicant had written to Mrs. George W. Bush concerning the medical treatment provided by Darnall Army Community Hospital at Fort Hood, TX.  In his letter to the First Lady, the applicant raised three issues:

	a.  overturning the Feres doctrine which prohibits Soldiers from bringing lawsuits into federal court for alleged medical malpractice occurring in military hospitals;

	b.  whether the deceased FSM should have been given the opportunity to sign up for VGLI at the time of her discharge from the U.S. Army; and

	c.  why the U.S. Army Claims Service waited until the death of the FSM to advise the applicant on the Feres doctrine. 

12.  In the letter to the applicant, the commander for the U.S. Army Claims Service responded to the applicant's concerns in regards to the Feres Doctrine. The Feres Doctrine arose out of the 1950 U.S. Supreme Court case of Feres v. United States.  The Feres Doctrine provides, in pertinent part, that Soldiers are precluded from suing the U.S. Army for any negligence they may have suffered incident to their service.  He states that only Congress or the U.S. Supreme Court can change or repeal the Feres Doctrine.  He also addressed the issue of Veterans Group Life Insurance (VGLI) by stating the applicant should seek relief from the VA as the U.S. Army does not have jurisdiction over this program.  He concluded his letter by recommending the applicant write the Army Review Boards Agency and petition for extraordinary relief. 

13.  With respect to SGLI, the FSM's record does not contain a legible copy of her SGLI Form 8286.  Nevertheless, by law, SGLI is in effect throughout the period of full-time active duty service or active duty for training plus 120 days following the Soldier's separation or release.  The FSM's 120th day after separation was 29 December 2001.  

14.  A Soldier upon separation from active duty or active duty for training may elect to convert his or her SGLI to VGLI within 120 days of separation without proof of good health, or within one year and 120 days of separation from active federal service with proof of good health.  The Soldier's election to convert to VGLI at the time of discharge is a decision made between the Veteran and the VGLI program administers.  There are nominal premium payments associated with VGLI that are paid by the Veteran when VGLI is elected as a life insurance policy post separation.  
DISCUSSION AND CONCLUSIONS:

1.  This Board understands and sympathizes with the applicant's situation as he grieves the loss of his beloved wife and the mother of his two young children. 

2.  Upon recommendation from the U.S. Army Claims Service, the applicant contends that he should be entitled to extraordinary relief by this Board for the death of the FSM due to alleged errors on the part of the military medical community during her period of active duty service. 

3.  The evidence of record shows that the FSM was properly discharged from the U.S. Army on 31 July 2001 due to her physical disability.  Records show she was entitled to severance pay upon her honorable separation. 

4.  The evidence of record shows that the FSM was evaluated for a lump on her right breast at Darnell Community Hospital on Fort Hood in February 1998.  The radiologist reported that ultrasound examinations further determined that the FSM had normal appearing fibroglandular tissue with no masses or cystic structures identified.  It appears she was diagnosed with mastitis in March 1999.

5.  Nearly one year after the FSM's separation, in June 2002, she was diagnosed with breast cancer.  The evidence of record shows that the VA changed her disability rating to 100 percent due to her service connected back injury and its subsequent deteriorating condition and its impact on her movement ability.

6.  Nearly 2 years and 6 months after her separation from the U.S. Army, the FSM died on 26 December 2004 due to complications from carcinoma of the breast, liver metastasis, and lung metastasis as reported on her death certificate.

7.  While the circumstances of the FSM's death are unfortunate, there is no justifiable reason to grant extraordinary relief to the applicant.  The facts are that a formal diagnosis of cancer occurred nearly one year after her separation. 

8.  During the 120 days post separation, a Veteran may convert his/her SGLI coverage to VGLI without proof of good health or within one year and 120 days of separation with proof of good health.  As the U.S. Army does not have responsibility for, or authority over, the VGLI program, it will not be further addressed by the Board.

9.  In view of the foregoing, there is insufficient basis to grant the applicant extraordinary relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ____X___  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 to amend the decision of the ABCMR set forth in Docket Number AR20080007450, dated 31 July 2008.




      _______ _   X_______   ___
               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)                                         AR20090002825



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ABCMR Record of Proceedings (cont)                                         AR20090002825



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