BOARD DATE:	  29 September 2009

		DOCKET NUMBER:  AR20090009514 


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 that the records of her spouse, a deceased former service member (FSM), be corrected to show that he died on active duty and not while on the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, that her spouse's records should be corrected because she was not correctly counseled on all the documents she was asked to sign.  She states she was notified to come to the hospital and when she arrived she was told her husband was dead.  She states that she was told he had an asthma attack while in the field and that while they tried to revive him, it was impossible and that "they were working with him at that moment."

3.  The applicant states this all happened around 2:30 a.m. and that she was asked to sign some documents without reading them while she waited for her brother to come to the hospital.  She states she did not understand English very well and could not sit down and read all the paperwork.  She states she was given no options and she was told she had to sign the documents at that moment.

4.  The applicant states that at 5:00 a.m. her spouse was declared dead and that she was then allowed to see him.  She states it was a very undesirable and traumatic experience and "he looked like he was dead for more than a couple of 
hours."  The applicant maintains that had her spouse received the necessary first aid, he would have survived and that all she is asking is that his status be changed since he was an active duty Soldier when this happened.

5.  The applicant provides a copy of the deceased FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his certificate of death, extracts from his service medical records, and a copy of the final autopsy report.

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 entered active duty as a Regular Army (RA) Soldier on 10 June 1995.  His enlistment physical examination notes that he had an occurrence of bronchitis prior to enlisting but he had not experienced any problems since.  However, commencing in 1996 the deceased FSM's medical records indicate he was treated for breathing problems.

3.  On 5 January 2002, according to documents contained in medical records submitted by the applicant, the FSM collapsed while on maneuvers and he was transported to Irwin Army Community Hospital at Fort Riley, KS.  He arrived at the hospital at approximately 2:53 a.m.  A clinical record notes the FSM received treatment between 0253 [2:53 a.m.] and when he was pronounced dead at 0500 [5:00 a.m.].

4.  One medical treatment document contains the notation that "death is imminent within 72 hours" and a second document states "ok for medical retirement given @ 0455 [4:55 a.m.], CPR [cardiopulmonary resuscitation] continues up to this point, CPR stopped, PT [patient] pronounced @ 0500 [5:00 a.m.]."  The deceased FSM's certificate of death listed his time of death as 5:00 a.m. on 5 January 2002.

5.  Documents associated with the FSM's disability retirement process were not contained in records available to the Board.  However, his DD Form 214 indicates that he was retired by reason of disability (temporary) on 5 January 

2002.  The DD Form 1300 (Report of Casualty) indicates the deceased FSM's "duty status" at the time of death on 5 January 2002 was "Temporary Disability Retired List 100% - 5 JAN 2002."  That same form indicates the applicant's spouse and two dependent step-children were residing at Fort Riley at the time of his death.

6.  In response to inquiries by the deceased FSM's spouse regarding his death, a 16 September 2002 letter from the Office of the Armed Forces Medical Examiner noted that a review of medical records, death investigation with witness statements, autopsy report, scene and autopsy photographs "supported the submitted medical opinion as to the cause and manner of death in this case.  The cause and manner of death was listed as "reactive airway disease, natural."  The letter noted the deceased FSM's circumstances as:

"This 24-year old active duty USA Sergeant had a documented history of medication-dependent reactive airway disease and allergies.  He began experiencing difficulty breathing while on maneuvers.  He was in possession of a prescribed inhaler that was reportedly empty at the time of the incident.  He collapsed in front of his comrades.  Upon physical examination he was unresponsive, with a weak pulse and not spontaneous respirations.  Rescue breathing maneuvers were initiated, and intravenous medication was administered.  He was intubated and emergently transported by helicopter to Ft. Irwin Army Community Hospital, Kansas.  Four minutes prior to arrival at the hospital, no pulse was palpable, and assisted ventilation met resistance.  Upon hospital arrival, he was limp, cyanotic, and asystolic.  Continued resuscitation efforts proved fruitless, and he was pronounced dead on 05 JAN 2002."

7.  Department of Defense Instruction (DODI) 1332.38, paragraph E3.P1.6.4, in effect at the time, stated 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 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.  Determination of death shall be made under the laws of the state where the member is assigned or under military medical standards when the member is outside the United States."



8.  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 Standard Form (SF) 502 (Narrative Summary) and includes the statement that death is expected within 72 hours.  The Deputy Commander of Clinical Services or his designated representative ensures that the medical evaluation board (MEB) is completed and approved.  The physical evaluation board liaison officer (PEBLO) provides information to the PEB to complete certain items on the DA Form 199 (Physical Evaluation Board Proceedings).  The PEB adjudicates the case and ultimately renders findings and recommendation(s) 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(s) 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.

9.  Originally, when death was imminent, retirement for physical disability provided greater benefits than if death occurred on active duty.  In particular, survivors of Soldiers who died on active duty were not entitled to benefits under the Survivor Benefit Plan (SBP) unless the Soldier had at least 20 years of federal service.  In the applicant’s case, she was permitted to elect SBP entitlements for her children which she would not have been permitted to elect under SBP laws in effect at the time.  Information obtained from the Defense Finance and Accounting System (DFAS) indicate the applicant was not receiving an SBP annuity but her two children were.

10.  The National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2002 (Public Law 107-107, dated 28 December 2001, and codified at Title 10, U.S. Code, section 1448(d)), authorized survivor benefits for a surviving spouse of any member who died in the line of duty while on active duty.  In the event the Service member had a surviving spouse and surviving children, this change only allowed the surviving spouse to receive SBP payments that were offset by Dependency and Indemnity Compensation, rather than allowing the SBP to pass to the children.  Public Law 107-107 became effective retroactive to 10 September 2001.

11.  The NDAA for FY 2004 (Public Law 108-136, dated 24 November 2003, amending Title 10, U.S. Code, section 1448(d)), rectified this issue by authorizing the "Secretary concerned in consultation with the surviving spouse" to determine 
whether the Service member's surviving children should receive SBP instead of the surviving spouse.  Public Law 108-136 became effective for Soldiers who 
died on or after the enactment of the NDAA for FY 2004 on 24 November 2003.  After this change, in January 2004 imminent death processing was discontinued.

12.  Subsequent to the discontinuance of imminent death processing, entitlement to additional monetary benefits for survivors of Soldiers who died in an active duty status continued to evolve.

13.  Death Gratuity is a tax-free, lump sum payment paid by Department of Defense in the event of a death while the member is serving on active duty (including certain members of the Reserve components during training), or those Soldiers who die within 120 days after release from active duty if the death is due to a service-related disability.  In FY 2004, the death gratuity statute was amended to provide that the gratuity be adjusted upward by the same amount as any increase in military basic pay.  As part of what was formally called the Death Benefits Enhancement, the death gratuity was increased from $12,000.00 to $100,000.00 in a case of death resulting from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions, or situations involving an instrumentality of war).  This increase was made retroactive for deaths that occurred on or after 7 October 2001.  The NDAA for FY 2006 (Public Law 109-163, enacted 6 January 2006) increased the death gratuity to $100,000.00 for all deaths retroactive to 7 October 2001 without regard to the “combat” provision of the earlier law.

14.  Evidence available to the Board indicates the applicant received an initial death gratuity payment of $12,000.00 and in September 2006, after enactment of the new law, applied for the increased benefit amounting to $88,000.00 bringing her total death gratuity payment in line with the increased authorization provided for by the NDAA for FY 2006.

15.  The Servicemembers’ Group Life Insurance (SGLI) makes life insurance protection available to members of the uniformed services at a reasonable cost.  All members of the uniformed services are automatically insured for the maximum coverage under SGLI.  Coverage terminates 120 days after leaving active duty.  The maximum coverage has increased through time; it was $250,000.00 at the time of the FSM’s death in January 2002.  Public Law 109-13, enacted on 11 May 2005 increased the SGLI to $400,000.00 at no additional cost for those who die from wounds, injuries, or illnesses that occur in a combat zone (as designated by the Secretary of Defense) or in combat-related activities (including training, hazardous conditions or situations involving an instrumentality of war).  This increase was made retroactive for deaths that occurred on or after 7 October 2001 and was to have terminated on September 30, 2005.  

16.  The NDAA for FY 2006 (Public Law 109-163, enacted 6 January 2006) increased the SGLI to $400,000.00 and removed the “combat” stipulations.  It also provided for a $150,000.00 SGLI death gratuity payment to any service member who died on active duty between 7 October 2001 and 11 May 2005 which effectively equalized the benefits for most Soldiers who died on active duty whether death was related to combat actions or not.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provided for Department of the Army to defer the disposition of a Soldier and continue him or her on active duty (COAD) under certain circumstances.  The regulation specifically prohibited the COAD of a Soldier solely to increase benefits but did permit COAD when “retention is justified as being of value to the Army."

DISCUSSION AND CONCLUSIONS:

1.  The deceased FSM's medical retirement process was conducted in accordance with the law applicable at the time and he was properly and equitably retired in accordance with the regulations in effect at the time.  Given the laws in effect at the time, the FSM was retired for the applicant's personal financial gain and the applicant has not provided sufficient evidence which would refute the medical determination as it related to her spouse’s time of death.

2.  However, while the Board finds no legal error in the FSM's case and the applicant does not argue that utilization of imminent death processing procedures impacted her financial benefits, clearly the original intent of Army officials was to maximize whatever military benefits might assist her and her children after the FSM's untimely death.

3.  The applicant was entitled to and received the $250,000 SGLI because under the law it could be collected on retirees who died within 120 days following retirement.  However, with the enactment of the NDAA for FY 2006, had the FSM died in an active duty status, the applicant would not only have been entitled to the $250,000.00 but would also now be eligible for the additional $150,000.00 SGLI death gratuity payment.

4.  While there was no way that Army officials could have known about the changes that were to be made to the relevant laws within just a few years of the FSM's death, based on equitable considerations and in keeping with 
the original intent of maximizing the applicant's benefits, the deceased FSM's record should be corrected to show that he was on active duty at the time of his death on 5 January 2002. 

5.  Although the FSM may not have met regulatory requirements for COAD under the provisions of Army Regulation 635-40, as an exception to the regulatory provisions and as a matter of equity, correcting the FSM’s DD Form 199 to show that he was approved for “Continued on Active Duty (COAD)” would negate the requirement to void the properly executed imminent death action and place the deceased FSM in an active duty status at the time of his death.

BOARD VOTE:

____x___  ___x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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:

	a.  correcting the FSM's DA Form 199 (PEB Proceedings) to show that he was approved for "Continued on Active Duty (COAD)" in accordance with Army Regulation 635-40.

	b.  voiding any orders issued by Department of the Army placing the FSM on the Temporary Disability Retired List;

	c.  correcting the DD Form 1300 (Report of Casualty), Item 5g (Duty Status) to read "Active Duty;" and

	d.  voiding any DD Form 214 (Certificate of Release or Discharge from Active Duty) which may have been previously issued as a result of the FSM's death.



2.  The Board extends its deepest sympathy to the applicant and her family and appreciates the sacrifices made by the deceased FSM in service to our Nation.  The applicant and her family should be justifiably proud of her spouse’s service in arms.



      _____________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)                                         AR20090009514



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ABCMR Record of Proceedings (cont)                                         AR20090009514



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