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ARMY | BCMR | CY1990-1993 | 9008760
Original file (9008760.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Reconsideration of the two denials of his application for correction of his military records wherein he requested that he be paid incapacitation pay (disability pay for reservists injured in line of duty which consists of the affected reservist’s full active duty pay and allowances) for the period 15 August 1985 to 10 May 1987.

APPLICANT STATES : In a letter to the Secretary of Defense, he chronicles the events of his case, including how and when he was injured, the treatment history for his injury, and the alleged errors made by his unit administrator which resulted in his not getting required doctor’s appointments and, therefore, not being authorized incapacitation pay for the period in question.

 EVIDENCE OF RECORD : The applicant’s military records were incorporated in the Memorandum of Consideration prepared during the original review of his case.

The Board denied the applicant’s request in two Memoranda of Consideration dated 18 December 1991 and 28 June 1995.

On 25 June 1985, while performing annual training with his unit, he was riding in a jeep through terrain with very dense foliage. The jeep came to an sudden, unexpected stop, causing the applicant to be thrown against a machine gun mount.

He was initially diagnosed as having a closed head injury and a possible concussion. He was subsequently diagnosed as having post traumatic syndrome and possible organic brain syndrome. Further testing and evaluation later diagnosed him as having an organic brain syndrome, manifested by paranoid symptoms and poor impulse control, a fluctuant hearing loss, and a decreased visual acuity in the left eye probably secondary to traumatic macular edema. His symptoms rapidly improved and he was discharged to full duty on 14 August 1985. He had follow-up appointments on 2 and 18 September 1986 and on 21 October 1986.

On 11 May 1987 the applicant was evaluated by Walter Reed Army Medical Center (WRAMC) for an ongoing history of episodic rage, belligerence, cognitive difficulties and extreme marital problems secondary to his “change.” On his admission his chief complaint was recorded as “I don’t need to be here” and he exhibited aggressive and belligerent behavior. That behavior was resolved within 24 hours with medication, a medication he was previously prescribed. He was referred to a medical evaluation board (MEB), which diagnosed him as having continuing personality changes and determined that he did not meet the medical retention standards. He was then referred to a physical evaluation board (PEB). The PEB confirmed the MEB’s finding and determined the unfitting condition to be 30 percent disabling. Since his disability was not considered to have stabilized, the PEB recommended that he be transferred to the temporary disability retired list (TDRL).

In the processing of this case an advisory opinions (COPIES ATTACHED) were obtained from the Deputy Chief of Staff for Personnel (DCSPER) and the Chief, National Guard Bureau (NGB).  The NGB recommended disapproval of the applicant’s request, and the DCSPER recommended approval of the applicant’s request.

 DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, and advisory opinions, it is concluded:

1. As stated in the Board’s previous Memorandum of Consideration, the applicant was returned to a duty status on 14 August 1985 and has not submitted any documentation to show that he was unable to perform his military duties prior to 11 May 1987. For that matter, he did not submit any documentation with his current request for reconsideration which wasn’t previously considered by the Board.

2. In his current request for reconsideration, he states that he was treated on numerous occasions between 14 August 1985 and 11 May 1987 by civilian, VA and military physicians, but he has not submitted any evidence of that treatment. The only evidence of record is of his being treated twice at Fort Dix in September 1986 and once at the Philadelphia VA Hospital in October 1986. None of those examinations indicate that the applicant had an unfitting condition. The Board has cited the lack of evidence of other medical treatment, with corresponding evidence of disability, as a reason for denying his request in both its previous considerations of the applicant’s case. It would seem logical that the applicant would have attempted to overcome this deficiency by obtaining records of his medical treatment and providing those records to the Board if he did, in fact, receive the treatment. The Board must emphasize that a record of treatment would not, in itself, form a basis for granting the applicant’s request. Those records must also show that he was physically disabled.

3. In seeming contradiction to the applicant’s statement that he was continuously attempting to have doctor’s appointments made for him, he was apparently forced to go to WRAMC, considering his chief complaint was recorded as “I don’t need to be here.” Such an attitude is not indicative of an individual who was actively seeking medical care. During his MEB he was diagnosed as having continuing personality changes, indicating that the extent of his disability was either fluctuating or had progressed to its current level of disability over time. Also, his aggressive and belligerent behavior was resolved within 24 hours with medication, a medication he was previously prescribed, indicating that his condition deteriorated when he stopped taking his prescribed medication. In addition, the PEB’s placement of the applicant on the TDRL is also indicative that the applicant’s condition had not stabilized.

4. As for the DCSPER recommendation for approval of the applicant’s request, as stated in the Board’s Memorandum of Consideration of his first request for reconsideration, the DCSPER had apparently taken the contents of the unit/family history and medical assessments from the 28 May 1987 WRAMC clinical write-up as verified information. There is no evidence of this. More likely, that “information” was obtained from the applicant himself, a practice which is not uncommon. Without substantiating documentation, documentation which the applicant must provide in the absence of evidence of record, the Board must discount the opinion of the DCSPER.

5. As concluded by the Board in its previous memorandum of consideration, it is reasonable to assume that if the applicant was experiencing symptoms which were incapacitating, he would have sought medical care. Since there is no evidence of medical treatment, it must be presumed that his medical condition had stabilized for a period of time to a level that, while some symptoms may have still existed, were not disabling.  A soldier who is injured who is once released to return to duty, as was the applicant on 16 August 1985, is not disabled until he is once again removed from a duty status, as was the applicant by the MEB as a result of his 11 May 1987 admission.

6. In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

 BOARD VOTE :
GRANT

GRANT FORMAL HEARING

 DENY APPLICATION




                                                      Karl F. Schneider
                                                       Acting Director

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