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Board for Correction Case No. 009-82

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Board for Correction Case No. 009-82

141.00 Disability Retirement - Retire on disability

Record of Proceedings Case No.009-82, Xxxxxxxxxx

Pursuant to the provisions of Title 10 U.S.C. 1552, Subject, hereinafter referred to as the petitioner, filed written application contained as part of attachment (2), with this Board requesting that his wife, xxxxxxxxxxx, a PHS Officer be deemed to have died while in disability retirement status in lieu of in active duty status.

No request for hearing was submitted by the petitioner, and the case was considered in closed session on xxxxxxx, 1982.

The Board considered all documentary evidence, statutes, regulations and policies contained in attachment (2).

The relevant facts of this case and the Board's Findings, Conclusions and Recommendations are attached as attachment (1) to avoid repetition.

After review and consideration of all evidence of record, the Board has made the following recommendations.

  • That the record be corrected to indicate that xxxxxxx died while in disability retirement status; 

  • That Xxxxxxxxxx survivor(s) be awarded all benefits accruing to a retired officer as provided by regulation, policy, etc, the same as if Xxxxxxxxxx had died while in permanent disability retirement status as recommended by the PHS Medical Review Board; 

  • And that such benefits be awarded commencing as of the date of Xxxxxxxxxx death, xxxxxx, 1981.

It is certified that a quorum was present at the Board's deliberations; and that the foregoing and attachments are a true and complete record of the Board's proceedings in the above ­entitled matter.

The foregoing action of the Board is submitted for your review and approval.

Robert J. Miranda
Chairperson
Board for Correction Commissioned Corps Personnel Records

Attachments :

(1) Board's Findings, Conclusions and Recommendations
(2) Case Brief and all available documentary evidence

Reviewed and Approved:

Wilford J. Forbush
Deputy Assistant Secretary for Health Operations and
Director, Office of Management/PHS

Attachment 1

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE BOARD FOR CORRECTION OF PUBLIC HEALTH SERVICE (PHS) COMMISSIONED CORPS PERSONNEL RECORDS

Case No.: 009-82

Date of Application: xxxxxxxx, 1982

Petitioner's Name and Address:

xxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxx xxxx xxx xxxx
xxxxxx xxxx xxxx
xxxxx xxxxxxx

Service No./Social Security No. xxxxxxxxxxxxxxxx

Date of Alleged Error or Injustice: xxxx 1981

Applicant's Requested Corrective Action:

That xxxxxxx xx xxxxx be deemed to have died while in disability retirement status.

Date of Meeting: xxxxxx, 1982

Hearing:

A hearing was not requested by applicant. The merits of the case were Reviewed on the basis of the documentation presented.

Board Members Present: Robert J. Miranda (Chairperson)

I. Findings and Conclusions

On xxxx 1982, the Board convened to review the petition submitted by xxxxxxxxxxxxxx. A quorum was present and the Board unanimously arrived at the following findings and conclusions:

  • xxx xxxx xxx xxxxx joined the PHS on xxxxx 1964, and after xx years of service, on xxxx, 1981 was found by a Medical Review Board (MRB) not fit for duty and eligible for disability retirement due to physical disability (xxxxxxxx) at the rate of xxx percent under provisions of 10 U.S.C. 1210 and Section 221(a)(2) of the PHS Act. 
  • That Xxxxxxxxxx was notified of the recommendation of the MRB on xxxxx, 1981 and provided with 30 days in which to indicate her acceptance or rejection of the MRB's recommendation or to make an election regarding her Survivor Benefit Plan. 
  • That Xxxxxxxxxx died on xxxxxx, 1981 without notifying the PHS of her acceptance or rejection of the MRB's recommendation or making an election regarding her Survivor Benefit Plan. 
  • That if xxxxxx had survived the remaining eight days of the 30-day time Period allocated for response and still had failed to accept or reject The MRB's recommendation or make a selection regarding her Survivor Benefit Plan, that, in accordance with current policy and law, xxx would have been placed on permanent disability retirement and her husband would have been entitled to the maximum leve of coverage under the Survivor Benefit Plan as requested in the petition. 
  • That Xxxxxxxxxx, because of her severely deteriorating health (as supported by the nature of her illness, her subsequent untimely death and letters submitted by relatives), was unable to complete the documentation required but had personally accepted the recommendation of the MRB for permanent disability retirement.

II. Recommendation

After consideration of all evidence presented and law, regulation and guidance pertinent to the issue at hand, the Board finds that an injustice has occurred.

To equitably resolve this issue, the following action is recommended:

  • That the record be corrected to indicate that xxxxxxx died while in disability retirement status; 
  • that xxxxxxxxxx survivor(s) be awarded all benefits accruing to a retired officer as provided by regulation, policy, etc., the same as if xxxxxxxx had died while in permanent disability retirement status as recommended by the MRB; 
  • and that such benefits be awarded commencing as of the date of Xxxxxxxxxx death, xxxxxx 1981.

I certify that the foregoing represents the consensus of the Board in the above stated matter.

Ruth J. Wunsh
Executive Secretary
Board of Correction of PHS Commissioned Corps Personnel Records

Findings, Conclusions and Recommendations

  1. Board Member: Robert J. Miranda, Chairman
  2. Docket No: xxxx
  3. Name of Petitioner: xxxxxxxxxx
  4. Nature of Alleged Error or Injustice: Was found eligible for disability retirement but died prior to retirement. 
  5. Applicant's Requested Corrective Action: That xxxxxx be deemed to have died in retired status.
  6. Date of Board Meeting: xxxx 1982 
  7. Findings: As stated in the case brief. 
  8. Conclusions: The facts of this case support the applicant's position that:

    Xxxxxxxxxx accepted the PHS Medical Review Board's determination of xxxx 1981, that she was not fit for duty and was eligible for retirement due to physical disability; Xxxxxxxxxx fully intended to file the necessary retirement papers in accordance with CPOD's instructions; and her rapidly deteriorating physical condition prevented her from doing so.
  9. Recommendation: I recommend that the Board find that:

    9 The record be corrected to show that xxxxx died while in retired status;

    9.2 Xxxxxxxxxx survivor(s) be awarded survivor benefit pay, lump-sum death gratuity and other benefits accruing to a retired officer as provided by regulation; and

    9.3 Xxxxxxxxxx survivor(s) be awarded retro­actively to the date of her death the difference between the benefits awarded the survivor(s) given the current determination that Xxxxxxxxxx died in active duty status versus Board determination that she was retired at time of death.

Findings, Conclusions, and Recommendations

I. Findings

This case is for correction of status at the time of death for a Medical Director in the PHS Commission Corps. The alleged error or injustice was that the deceased was found eligible for disability retirement but died prior to accepting retirement status. The family of the deceased requests that corrective action be taken to place the deceased in a retired status at the time of her death. The applicant has requested that the record be corrected to show that his deceased wife, xxxxxx xxxx, be deemed to have died while on disability retirement status in lieu of active duty, since she had been deemed eligible for disability retirement (xxxx) and was in the process of retiring when she died.

At the time that CPOD wrote their Administrative Report (xxxxxxx,1982) insufficient Documentation had been presented to demonstrate that xxxx had intended to accept the disability retirement determination and the survivor benefits coverage. Subsequent to the decision in this report, the family of the deceased have Submitted to this Board of Correction three separate letters indicating that the Deceased: 1) was aware of the impending disability status recommendation and was Prepared to accept it; 2) was physically incapable of completing the necessary Forms because of her rapidly deteriorating status, but had attempted to begin completing the forms according to the recommendations of the retirement Board. Subsequent to the notifications to the family of the status of the Deceased survivor benefit coverage for family members, her husband and her Daughter have submitted documentation to clarify the deceased intentions and Deteriorating physical status to her death.

II. Conclusions

Inasmuch as a medical review board found Xxxxxxxxxx not fit for duty and eligible for retirement due to physical disability (xxxxxxxxxxxxxxxxxxxx) at the rate of xxxx under provisions of 10 USC 1210 and Section 221(A2) of the Public Health Service Act, the only issue in this case is whether or not the deceased had intended to comply with the recommendation of the Medical Review Board.

In my opinion, there is now sufficient evidence to suggest that xxxxxxx had all intentions of complying with the recommendation for retirement due to physical disability, but that her illness prevented her from so indicating in a formal manner.

III. Recommendations

I recommend that the PHS Commission Corps Personne1 Records be corrected such that xxxxxxxx be deemed to have died in retirement status. All rights/benefits and privileges due her surviving spouse and beneficiaries be corrected and amended subsequent to this correction in her records and back dated to time of death.


Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.