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Decision Text

ARMY | BCMR | CY1990-1993 | 9310045
Original file (9310045.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his military records be corrected to show that he was medically retired.
APPLICANT STATES : That he was never offered treatment for his panic attacks even though he had requested medical care.  He was told to either resign his commission or be involuntarily discharged.

 EVIDENCE OF RECORD : The applicant's military personnel and medical records show:

He enlisted in the Regular Army on 23 June 1983, was awarded the military occupational specialty of administrative specialist and was promoted to pay grade E-5.

On 23 June 1986 he was admitted to a military hospital in Seoul, Korea, for a psychiatric evaluation. He was found to be free from any mental disorder at that time.

On 20 February 1987 the applicant was honorably released from active duty by reason of reduction in authorized strength and was transferred to an Army National Guard (ARNG) unit the following day. While a member of the ARNG, the applicant enrolled in the Reserve Officers Training Corps (ROTC) and became a Simultaneous Membership Program (SMP) participant (participates in the ROTC and in his ARNG unit during the same period of time).

While in the ARNG, the applicant had a periodic physical examination on 27 June 1987 and another physical examination on 16 June 1988 to determine his fitness to attend ROTC advanced camp. On the portion of the record of examinations wherein a soldier him or herself lists his or her physical condition, the applicant denied having any physical or mental problems.

On 11 May 1989 the applicant was commissioned a second lieutenant, ARNG. He was transferred to a USAR unit on 14 September 1989.

On 9 June 1990 he was given a physical examination to determine his fitness for attending the Officer Basic Course. In that examination, the applicant stated that he was in poor physical health, having suffered from panic attacks since 1986, and was diagnosed as having, and began treatment for, panic disorder in 1990. The applicant also reported having experienced frequent headaches and dizzy spells.

Thereafter, the applicant submitted a memorandum to his Army Reserve Command commander along with two letters from his physician. In that memorandum the applicant stated that he first experienced panic attacks when he was an enlisted man in the Regular Army. Those panic attacks dramatically decreased his stamina which caused him problems with passing his physical fitness tests. Those attacks also caused him to become dysfunctional in the performance of his duties which led to his being labeled as insubordinate and irresponsible. He repeatedly went on sick call but was told that his problem was all in his head. During that time he was also discriminated against since he was the only Hispanic in his unit. Due to those problems he opted to leave the Regular Army. Since that time he had sought treatment for his problem with numerous different specialists only to be told there was nothing wrong with him until his family physician properly diagnosed and treated his panic attacks in May 1990. He concluded that he did not think he could meet the physical demands of the military way of life.

On 14 June 1991 orders were published honorably discharging the applicant as a reserve of the Army effective 16 June 1991 by reason of medical disqualification.

Records provided by the VA show that the applicant applied for a disability rating for panic disorder with depression and for agoraphobia (fear of being in a large, open place). The VA denied the applicant’s request, finding that both of those conditions were not service related. Upon appeal, that determination was upheld.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if a medical condition was incurred or aggravated by military service, the finding will be in line of duty. If a medical condition is not incurred or aggravated during military service, the individual is not entitled to any medical or monetary benefits from the Army. Specific findings of natural progress of the pre-existing conditions based on well established medical principles alone are enough to overcome the presumption of service aggravation.

The Court of Claims and the Comptroller General of the United States have held that short periods of active duty do not give rise to the presumption of the cause of an illness or disease.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of the percentage of disability to be awarded. This regulation provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties due to an acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while performing active or inactive (weekend drill) duty.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Command Surgeon, Army Reserve Personnel Center (ARPERCEN). The ARPERCEN stated that there is insufficient documentation to support the applicant’s contentions.

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

1. There is no indication that the applicant was ever determined to be physically unfit while in the Regular Army. Therefore, he was not referred to a medical evaluation board. Absent this referral, the applicant was not eligible for separation by reason of physical unfitness.

2. The applicant does not claim that his panic disorder was incurred or aggravated while on active duty while in the ARNG or USAR nor is there any evidence of such an occurrence.

3. The preceding conclusions are supported by the denial by the VA of the applicant’s claim that his panic disorder was service related, and by the advisory opinion obtained from the ARPERCEN.

4. 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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