RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 March 2006
      DOCKET NUMBER:  AR20050005901


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Larry J. Olson                |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 requests, in effect, that the records of her deceased
husband, a former service member (FSM), be corrected to show that instead
of being honorably separated, by reason of physical disability with
severance pay on
28 June 2004, he was instead retained on the Temporary Disability Retired
List (TDRL) or placed on the Retired List, by reason of permanent
disability on the same date.

2.  The applicant states, in effect, the FSM was removed from the TDRL in
June 2004, and only seven months later, on 6 January 2005, he died due to
complications of systemic Sarcoidosis, which is the same condition for
which he was placed on the TDRL.  She claims the FSM's death was a
devastating shock to her and her family, particularly in light of the fact
that absolutely no one from the military or civilian medical community ever
conveyed to the FSM the grave seriousness or extensiveness of his illness.
She is now requesting that the FSM's record be corrected to show he was
retained on the TDRL and medically retired at the time of his death given
his medical condition was obviously much more serious than the doctors
thought when he was removed from the TDRL.

3.  The applicant claims that she is not placing blame or fault for her
husband's death; however, she is prepared to do whatever it takes in order
to rectify what she feels is a tragic miscarriage of justice on behalf of
the FSM.  She states that no amount of money will bring back her husband,
or the gap it has placed in her heart, and the hearts of their three
children, who are ages five, seven and nine.  Moreover, she states that the
FSM's death has caused serious financial hardships, and has seriously
impacted her five year-old son.

4.  The applicant states that she does not know if her husband had to die,
but what she does know is that neither he nor she had any idea that
Sarcoidosis would kill him just seven months after the doctor's reported
that he was well enough to be removed from the TDRL, which makes no sense.
So she is now seeking the help of the Board.

5.  The applicant provides the FSM's Medical Records, Coroner's Report, and
Death Certificate in support of the application.

CONSIDERATION OF EVIDENCE:

1.  On 22 September 2000, a PEB found the FSM unfit for further service for
Sarcoidosis (VASRD Code 6846), with a 30 percent (%) disability rating.
The PEB recommended he be placed on the TDRL.

2.  On 1 January 2001, the applicant was honorably released from active
duty under the provisions of Army Regulation 635-40, by reason of
disability, temporary, and he was placed on the TDRL.  The separation
document
(DD Form 214) he was issued at the time confirms he completed a total of 9
years, 1 month, and 1 day of active military service, and that he held the
rank of specialist (SPC).

3.  On 17 May 2004, a PEB convened to reevaluate the FSM.  It found he was
still physically unfit for further service for Sarcoidosis, and it assigned
a disability rating of 0% and recommended he be separated with severance
pay.  The PEB indicated that the FSM's was working 40 hours a week, and was
not being followed by a pulmonologist, nor was he using any medication.  It
further indicated that the FSM reported daily fatigue without any pulmonary
symptoms.  The PEB finally noted that the FSM was not receiving nor had he
been seeking any medical care for his condition.  It further indicated that
the PEB rating of 0% more accurately reflected the degree of the severity
of the FSM's condition.

4.  On 4 June 2004, the FSM nonconcurred with the PEB findings and
recommendations; however, he waived his right to a formal hearing.

5.  On 15 June 2004, the PEB reviewed the FSM's nonconcurrence, but
reaffirmed its findings, and on 24 June 2004, the United States Army
Physical Disability Agency (USAPDA) reviewed the FSM's case file and
affirmed the PEB's findings.

6.  On 25 June 2004, the FSM's case was approved for the Secretary of the
Army, and on 28 June 2004, the FSM was removed from the TDRL and honorably
separated, by reason of disability with severance pay.

7.  On 6 January 2005, the FSM died suddenly at home.  The postmortem
examination opined that the death was from cardiac arrest due to
complications from Sarcoidosis.

8.  In connection with the processing of this case, an advisory opinion was
obtained from the Deputy Commander, USAPDA.  This official stated that when
the FSM appeared for his March 2004 TDRL reevaluation, the PEB had to rate
him as he appeared at that time based on the medical evidence that existed
at the time.  The medical evidence provided by the examination, and by the
FSM, revealed that he clearly was still affected by his Sarcoidosis.
However, the physical findings, and the FSM's own statements, indicated it
was not so severe to require medical treatment/medications and did not
interfere with his ability to
work full time.  Perhaps he could have been even physically better had he
been on medications, but that is an unknown factor and certainly there is
no concern or possibility that he would have been worse had he been on
medication.

9.  The USAPDA Deputy Commander further indicated that using the medical
evidence in existence at the time, the PEB utilized VASRD Code 6846 to rate
the FSM.  To obtain a 30% disability rating there had to be evidence of
required chronic low dose (maintenance) or intermittent corticosteroids.
However, there was no such evidence of such requirement at the time.
Accordingly, the PEB could not rate him at 30% and it had to go to the next
level of rating, which was 0%.  The FSM was specifically informed of the
basis for the rating and he provided no new medical evidence to support a
30% rating.  His only real comments were that he wanted to remain on the
TDRL because he did not think his condition was stable. This condition can
wax and wane and can be unpredictable, but even knowing that, the medical
reevaluation opined that the FSM's condition was stable enough for final
adjudication.  Even if not stable, the PEB had no choice but to separate
him and remove him from the TDRL as Soldiers can only remain on the TDRL if
rated at 30% or if they have 20 years of service.  Since the FSM had
neither at the June 2004 review, he had to be separated with severance pay.


10.  The Deputy Director, USAPDA further states that there was no medical
evidence submitted that would indicate the FSM's condition immediately
deteriorated at or near the time of his separation in June 2004.  Even
after being advised to see a pulmonary physician during the TDRL
reevaluation there had been no evidence submitted to indicate the FSM
believed his disease was so severe that he needed additional medical care
or medications.  It appears that an unfortunate, untimely, unexpected, and
sudden heart attack occurred while the FSM was in his bed at home.  It is
tragic for all, but it is not cause to change the correct PEB findings.
This official concludes by indicating that the FSM's widow, the applicant,
clearly has certain claims she can file with the Department of Veterans
Affairs (VA) concerning the FSM's death and the USAPDA would
encourage her to do so.  However, the PEB findings were correct, not
arbitrary or capricious, and were not in violation of any law or
regulations; and were not unjust.

11.  On 11 January 2006, the applicant was provided a copy of the USAPDA
advisory opinion in order to have the opportunity to respond to its
contents, and she was given 30 days to reply.  On 10 February 2006, the
applicant requested a 60 day extension; however, only a 30 day extension
was granted.  To date, the applicant has failed to answer.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM should have been retained on
the TDRL, or placed on the Retired List by reason of permanent disability,
and the supporting evidence she provided were carefully considered.
However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was properly processed
through the PDES in accordance with the applicable laws and regulations,
and was separated by reason of physical disability with severance pay.  His
case was properly considered by a PEB, and his appeal was evaluated by the
PEB and the USAPDA.

3.  The death of the FSM is truly unfortunate, and the applicant's claim is
understandable because of the fact the condition for which the FSM was
separated was a contributing factor in his death.  However, the medical
evidence reviewed during the final PEB review showed the FSM was not being
medically followed for the condition, he no longer took medication for the
condition, and he was working a full 40 hour week in spite of his
condition.  The PEB after reviewing all the available medical evidence
concluded the applicant's condition, although unfitting for further
service, did not support a disability rating of 30%.  As a result, it was
compelled to recommend his removal from the TDRL, and his disability
separation with severance pay.

4.  The FSM appealed the PEB and indicated that he believed he should be
retained on the TDRL; however, even though he was advised to see a
pulmonary physician during the TDRL reevaluation, he failed to follow this
advice and he submitted no new evidence that would indicate he believed his
disease was so severe that he needed additional medical care or
medications.  All the arguments provided by the applicant were already
considered and evaluated by both the
PEB during its original review, and during the appellate process, and were
reviewed by the USAPDA, who supported the findings and recommendations of
the PEB in the applicant's case.

5.  The PEB findings and recommendations, to include the assigned
disability rating, were based on a comprehensive medical evaluation of his
disabling medical condition by competent medical authorities through the
PDES process.  A subsequent change or worsening of this condition would not
call into question the validity of the disability rating assigned during
the PEB process, and there is absolutely no evidence suggesting the PEB
findings and recommendations were arbitrary or capricious.

6.  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
provide any new medical evidence that would call into question the original
decision of the PEB in the FSM's case, or the affirmation of that decision
by the USAPDA.  Therefore, there is an insufficient evidentiary basis to
support granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___BJE__  __LJO __  ___RDG_  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.




                                  _____Barbara J. Ellis_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005901                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/28                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2004/06/28                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability with Severance Pay           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  177  |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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