APPLICANT REQUESTS: In effect, reconsideration of his previous request to correct his records by showing that he was retired due to physical disability.
APPLICANT STATES: In effect, that the advisory opinion that the Board obtained stated there was only one recorded clinic visit for his back when he actually was seen several times.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 8 February 1997 (COPY ATTACHED).
The applicants contention that the Boards original decision was based on erroneous information constitutes new argument. In support of his claim the applicant submits his separation physical which states; recurrent back pain, patient seen multiple times without success, placed on exercise with no good results, lower back, no prolonged sitting. He also submits a radiology consultation of the lumbar spine dated 1 July 1993 from the VA Medical Center, Tacoma, WA
Army regulation 15-185, paragraph 10c provides, in pertinent part, that reconsideration of a Board decision will be made when additional evidence or other matter including, but not limited to factual allegations or arguments, that were not previously available to the Board has been submitted.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The law and regulations cited in the Boards prior consideration of the applicants case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability.
2. Furthermore, the MOC points out that the applicant served honorably for more than 13 years and his final separation medical examination found him physically fit for separation.
3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. There is no right to a medical evaluation board. Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty.
4. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.
5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.
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
Loren G. Harrell
Director
ARMY | BCMR | CY1990-1993 | 9210632
APPLICANT REQUESTS : In effect, reconsideration of his previous request to correct his records by showing that he was discharged for physical disability retirement. APPLICANT STATES : That he has been denied post service benefits because he was not on active duty or on the Temporary Disability Retired List (TDRL) for at least six months prior to discharge. Medical reports submitted by the applicant in the appeal show some treatment for a low back condition, however, they do not relate that...
ARMY | BCMR | CY1990-1993 | 9005775
All of the applicant’s service medical records, VA medical records, and dental records up to this date and from 1974 under surnames and alias’ have been reviewed in consideration of the applicant’s request., The law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while...
ARMY | BCMR | CY2001 | 2001057941C070420
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The applicant requests...
ARMY | BCMR | CY2002 | 2002074935C070403
• Probative value of MEB, physical examinations and reports in a disability determination by the PEB and the ABCMR. The MOC, on page 6, notes that the ARBA medical advisor provided an AO; however, neither the AO nor the ABCMR MOC, discuss the overall effect of all, or some, of his ailments on his ability to perform his duties; pain as an unfitting condition; his VA and Army medical records; the postretirement report of examinations in the appeal that conflicted with Army MEB diagnoses, and...
ARMY | BCMR | CY1980-1989 | 8809278
APPLICANT REQUESTS : In effect, reconsideration of his previous application to correct his records by showing physical disability retirement. The applicant did not have any medically unfitting disability which required physical disability processing. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.
ARMY | BCMR | CY1990-1993 | 9306118
He demands reconsideration for a medical discharge based on the new evidence regarding his current medical condition. In support of his application the applicant submits a VA rating decision dated 16 February 1996 which grants 100 percent evaluation of service connected nervous disorder from 25 November 1992, but denies entitlement to monthly compensation. The law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that to be separated for...
ARMY | BCMR | CY1980-1989 | 8300142
APPLICANT REQUESTS : Reconsideration of his previous request to correct his records by upgrading his discharge. The applicant’s military records show that on 22 January 1981, after the approval of his request for a chapter 10 discharge that he was counseled on the requirements for completion of a medical examination prior to his separation. Considering the entirety of the case, the Board has considered all of the applicant’s past and present contentions regarding his desire to have his...
ARMY | BCMR | CY1995 | 9506207C070209
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 5 February 1997 (COPY ATTACHED). The law and regulations cited in the Boards prior consideration of the applicants case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition...
ARMY | BCMR | CY2008 | 20080004571
The applicant provides a copy of his previous board proceedings in support of his request through his MOC. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the entry, "SERVICE IN SOUTHWEST ASIA FROM 910222 910407," in item 18 (Remarks), of the applicant's DD Form 214. As a result, the Board recommends denial of so much of the application that pertains to correction of the applicant's records to show he...
ARMY | BCMR | CY1980-1989 | 8709019
APPLICANT REQUESTS : In effect, reconsideration of his previous application to correct his records by upgrading his discharge, changing the reason for discharge or granting a medical discharge. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time.