IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20100010810 


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, the widow of a deceased former service member (FSM) requests correction of her husband's records to show he was not placed on the temporary disability retired list (TDRL), but remained on active duty until the date of his death.

2.  The applicant states she discovered a law stating that an additional $150,000.00 in Service Members' Group Life Insurance (SGLI) would be awarded to survivors of those members who had died on active duty or whose death was combat-related.  She was advised by Army Long-Term Family Case Management that her husband should not have been placed on the TDRL due to the severity of his illness.

3.  The applicant states her husband was diagnosed with terminal high-grade sarcoma (malignant tumor) with mirovascular invasion prior to being placed on the TDRL on 11 November 2004.  She states the doctors and hospital administrative staff considered her husband's death as "imminent."  Although her husband's death did not meet the Army's definition of "imminent death" within
72 hours, she states his case was handled in that manner.  She states the Secretary of Defense prohibited "imminent death" processing on 23 December 2003 and her husband already had over 20 years of service.  She feels he should have been allowed to remain on active duty until his death.

4.  The applicant provides copies of:

* a time line of the FSM's illness
* the FSM's Medical Evaluation Board (MEBD) Proceedings and Narrative Summary (NARSUM)
* the FSM's MEBD Narrative Addendum
* a letter from the FSM's commander
* a letter from the Chief, Patient Affairs Branch, Womack Army Medical Center (WAMC), Fort Bragg, NC
* a Narrative Summary from WAMC, Fort Bragg
* the FSM's orders placing him on the TDRL
* the FSM's DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period ending 10 November 2004
* a letter from Odyssey Hospice, North Charleston, SC
* the FSM's Physical Evaluation Board (PEB) Proceedings
* a DD Form 1300 (Report of Casualty) pertaining to the FSM
* the FSM's Certificate of Death
* Office of the Assistant Secretary of Defense memorandum, subject:  Survivor Benefit Plan (SBP) Annuities when Member Dies on Active Duty, dated 1 May 2002
* an Information Paper, subject:  The SBP Annuity and Imminent Death Processing, dated 15 September 2004
* Implementing Policies, Procedures, and Responsibilities under Section 642, P.L. 107-107, December 28, 2001
* Office of the Assistant Secretary, Manpower and Reserve Affairs memorandum, subject:  Change to Imminent Death Processing Policy in Department of Defense Instruction (DODI) 1332.38, dated 16 January 2004
* Office of the Under Secretary of Defense memorandum, subject:  Change to Imminent Death Processing Policy in DODI 1332.38, dated
23 December 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 military personnel records show he enlisted in the Regular Army on 11 May 1983 for a period of 3 years.  He continuously served on active duty until his transfer to the TDRL.

3.  The applicant was diagnosed with terminal high-grade sarcoma with mirovascular invasion in May 2003.

4.  On 23 February 2004, an MEBD found the applicant medically unacceptable and referred him to a Physical Evaluation Board (PEB) for high grade sarcoma with microvascular invasion.

5.  An MEBD Narrative Addendum, dated 17 August 2004, stated the applicant remained without evidence of disease after his tumor resection until 2 months ago when he presented with new skin lesions.  His cancer is unlikely to respond to therapy in the future and he will eventually pass away from this horrible disease.

6.  On 22 September 2004, an informal PEB found the applicant unfit for duty under Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) code 5399 and 5329 for high grade sarcoma with microvascular invasion (malignant fibrous histiocytoma) originally in the left thigh for which he had chemotherapy, radiation, and surgery. The PEB stated at the time of surgery the FSM was noted to have Lymphvascular invasion and recently was noted to have new lesions on his right buttocks, testicles, and left thigh.  The lesions had not responded to high doses of chemotherapy.  The PEB stated the tumor is unlikely to respond to therapy.  The PEB recommended a combined disability rating of 100 percent (%) disability rating percentage and that he be placed on the TDRL with a reexamination during March 2006.

7.  On 30 September 2004, the FSM concurred with the finding and recommendation of the PEB and waived a formal hearing.

8.  A NARSUM, dated 31 October 2004, from WAMC stated the FSM was admitted with diagnoses of metastatic sarcoma with infected wounds and anemia from blood loss.  The FSM underwent debriding procedure (the usually 

surgical removal of lacerated, devitalized, or contaminated tissue).  The debriding procedure was terminated as the FSM would not likely survive from the metastatic sarcoma regardless.  After extensive discussion with the FSM and his family concerning the prognosis and limitations of life, the FSM decided to accept hospice care at home and he was transferred to his home on 4 November 2004.

9.  On 10 November 2004, the FSM was released from active duty and on
11 November 2004 he was placed on the TDRL with a 100% disability rating.  He had completed 21 years and 6 months of active duty that was characterized as honorable.

10.  On 7 December 2004 the FSM died in Charleston, SC.

11.  A letter, dated 4 April 2005, from the Odyssey hospice stated the FSM was a patient from 10 November 2004 until his death on 7 December 2004.

12.  A letter, dated 27 January 2009, from the Chief, Patient Affairs Branch, WAMC, stated the FSM's oncologist had given the FSM less than 3 months to live on 4 November 2004.  The chief stated that it was her opinion if the PEB had been made aware of the FSM's status he would have been removed from the TDRL and given permanent disability retirement with a 100% disability rating.

13.  A memorandum, dated 23 December 2003, from The Office of the Under Secretary of Defense to all of the Assistant Secretaries (Manpower and Reserve Affairs) stated that Section 645 of the National Defense Authorization Act (NDAA) for fiscal year (FY) 2004 expanded the SBP to provide an annuity for the surviving dependent children of a member who died while on active duty but is not yet eligible for retirement.

14.  The memorandum stated paragraph E3.P1.6.4 of DODI 1332.38 (Physical Disability Evaluation) had previously allowed the Services to expeditiously refer members to the Disability Evaluation System (PDES) "when competent medical authority determined that a service member's death is expected with 72 hours."

15.  The memorandum stated that due to the expansion of SBP eligibility the expeditious referral to the PDES was no longer appropriate and is hereby rescinded.   The memorandum specifically stated that imminent death processing would no longer be undertaken.

16.  The purpose of SGLI is to make 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.  The maximum coverage has increased through time and it was $250,000.00 in 2004.  On 1 September 2005, the SGLI was increased to $400,000.00 at no additional cost for those who die from wounds, injuries, or illnesses that occur in a combat zone or in combat-related activities.  This increase was made retroactive for deaths that occurred on or after 7 October 2001 and terminated on 30 September 2005.

17.  The NDAA for FY 2006, enacted on 6 January 2006, provided an additional $150,000.00 SGLI for any active duty death between 7 October 2001 and
11 May 2005.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the records of her deceased husband should be corrected to show he was not placed on the TDRL but remained on active duty until the time of his death so that she would be entitled to an additional $150,000.00 SGLI benefit.  She contends his case was handled in the same manner as those processed on the basis of imminent death.

2.  The reason for expeditious referrals to the PDES was to provide additional survivor benefits for the next-of-kin of members not eligible for retirement whose death was expected within 72 hours.  At no time was the FSM's death determined to be imminent.  His oncologist had given him less than 3 months to live on 4 November 2004.  In addition, the FSM had over 20 years of active service.  Therefore, his next-of-kin's benefits were already secure.

3.  The FSM was diagnosed with terminal cancer in May 2003, his MEBD was convened on 23 February 2004, his PEB was convened on 22 September 2004, and he was placed on the TDRL on 11 November 2004.  This clearly shows the FSM's case was not expeditiously processed under the provisions of "imminent death."

4.  The provisions for expeditious processing due to imminent death were rescinded by the Secretary of Defense on 23 December 2003.

5.  The NARSUM, dated 31 October 2004, clearly shows the FSM had attained optimum hospital treatment and it was unlikely he would return to duty; therefore, he was placed on the TDRL.

6.  The Chief, Patient Affairs, WAMC, stated the FSM should have been removed from the TDRL and permanently retired.  However, whether he was on the TDRL or permanently retired the fact remains he was not on active duty at the time of his death.

7.  While the difficulties the applicant may have encountered prior to, during , and subsequent to the FSM's death are regrettable, in order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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 for correction of the records of the individual concerned.



      __________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)                                         AR20100010810



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ABCMR Record of Proceedings (cont)                                         AR20100010810



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