MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 OCTOBER 2001
         DOCKET NUMBER: AR2001058572

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. 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 correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, physical disability retirement or discharge. Specifically, the applicant requests that the word “controlled” be removed from item 39 (Physician’s summary and elaboration of all pertinent data) of the applicant’s 20 September 1967 report of medical history (separation physical report).

APPLICANT STATES: That the doctor stated that he was being treated for chronic anxiety, secondary gastritis, and insomina, which was ongoing. He should have received a medical discharge. He states that the word “controlled” was entered by a doctor, other than his examining physician. That doctor did not examine him or see him, but because of his making that entry has caused his life to be miserable.

COUNSEL CONTENDS: Counsel supports the applicant’s request stating that the word “controlled” should be expunged from his medical record, that the applicant should have been referred to a medical evaluation board for a disability determination with a subsequent medical discharge.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was inducted into the Army on 9 November 1965, completed training at Aberdeen Proving Ground, Maryland, and in March 1966 was assigned to the Ordnance Center and School at Aberdeen as a vehicle recovery and evacuation instructor. He was promoted to pay grade E-4 on 23 June 1967. The applicant was released from active duty with an honorable characterization of service on 8 November 1967 in the pay grade of E-4. He had 2 years of service.

The applicant’s military medical records show that he was hospitalized for debility (lack or loss of strength) and undue fatigue for three days, and was returned to duty on 27 August 1966. The applicant was seen and treated for various other ailments during his military service, to include pains in his abdomen, upset stomach and vomiting, problem with sleeping, cold, athlete’s feet, sore throat, blister or callus on foot.

The 20 September 1967 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. The report was signed by a medical corps officer, a captain and by a dental corps officer, a major. It was reviewed by a medical corps officer, a captain. Item 74 (Summary of defects and diagnoses) contains the remark, “Apparent good general health.”

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In the report of medical history which he furnished for the examination, the applicant stated that he was in good health. He indicated that he had or did have frequent trouble sleeping and nervous trouble. He stated that he awoke sometimes two or three times a night and that he was being treated for nerves. Item 39 contains the remark, “Being treated for chronic anxiety and secondary gastritis and insomnia.” The word “controlled” is entered below that remark.
On 8 November 1967 the applicant signed a statement in which he stated that there had been no change in his physical condition since his last final-type medical examination on 20 September 1967. An 8 November 1967 DA Form 1811 (Physical and Mental Status on Release From Active Service) shows that he was physically qualified for separation with a physical profile serial of 1 1 1 1 1 1.

A 1 September 1995 VA medical certificate shows that the applicant came to the VA because he wanted to be entered into the ETOH (ethanol alcohol) program. An 18 September 1995 VA medical record indicates that the applicant denied he had a problem, that he had not had a drink for 18 months. That report indicates that the applicant stated that he was unable to hold a job and was stressed when he did work.

An 18 September 1995 VA psychiatric and mental health services report shows that the applicant stated that he had not felt troubled by family or social conditions, that he was moderately troubled by employment problems in the past 30 days, and that counseling for those employment problems was not at all important to him because he planned to move to West Virginia. He indicated that he had been treated for depression and alcohol problems for 28 days in 1985. He stated that he had experienced serious depression in his life, had experienced trouble controlling violent behavior, had not experienced serious anxiety or tension, had not experienced trouble understanding, concentrating or remembering, had experienced serious thoughts of suicide in the past 30 days, and had not been prescribed medication for any psychological/emotional problems. The VA report indicated that the applicant had a long history of alcohol abuse and recommended a treatment plan which included group therapy.
In a 3 May 2000 letter to the VA, individuals of the Vet Center stated that the applicant served as an instructor that trained men sent to Vietnam, and had experienced anxiety disorder since 1966. It indicated that the applicant was still having anxiety problems and has had those problems since leaving the Army. His anxiety worsened over time and the applicant was unemployable due to his disorder. His prognosis was poor with no improvement expected.

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A 22 June 2000 VA medical report shows that the applicant had a history of alcohol abuse since 1995, that he was being treated for anxiety and dysthmia (a mood disorder, characterized by depressed feeling and loss of interest or pleasure in one’s usual activities and in which the associated symptoms have persisted for more than two years but are not severe enough to meet the criteria for major depression), that he had irritable bowel syndrome, among other problems. That report shows that the applicant had stated that he had one suicide attempt when he overdosed on hallucinogenic drugs, but was not hospitalized or checked by any health professional. It indicated that he was receiving a non-service connected pension and was unemployed since October of 1999. That report shows that his condition was diagnosed as dysthymia, anxiety disorder not otherwise specified, alcohol abuse in remission, dermatitis, onychomycosis (fungal infection of the nail plate), gastritis, and arthralgia (pain in a joint).

In a 9 January 2001 letter to the VA, a person of the Vet Center stated that the applicant had been under their care for mood disorder and anxiety disorder which was diagnosed in 1966 while he was in the Army, and had been treated for that condition since then. The letter indicated that the applicant’s life had been in turmoil due to his illness, and that his poor memory and concentration was making him dangerous to himself and other in the industrial setting so that he had not worked for the past two years. It indicated that his condition was worsening and affecting his everyday life, and that his social and industrial functioning was greatly impaired. The letter indicated that the Vet Center encouraged the applicant to continue his treatment which included psychotherapy and psychopharmacology; however, his prognosis was poor.

An 8 May 2001 medical record shows that the applicant’s condition was diagnosed as dysthymia, anxiety, and alcohol abuse on remission.

An 11 May 2001 VA rehabilitation plan shows that the applicant was expected to participate in regular treatment for his psychiatric disability.

In an 18 May 2001 letter to a Member of Congress (MC), the physician who examined the applicant on 20 September 1967 stated that he felt quite certain that he did see the applicant on that date when he was acting as a medical officer of the day. He stated that he had no recollection of the encounter, but did say that the word “controlled” was not in his handwriting and was added to the record at some time by someone other than himself.

On 24 May 2001 the applicant, with counsel, appeared before a hearing at the VA Regional Office in Huntington, West Virginia concerning entitlement to an

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evaluation in excess of 30 percent for a service connected nervous condition diagnosed as thiemia (an excess of sulfur in the blood) with anxiety disorder, and also entitlement to service connection for the nervous condition prior to 4 October 1999. The applicant testified to his medical problems and indicated that his medical record at the time of his separation from the Army had been altered by inserting the word “controlled” on it.

A 12 July 2001 VA medical record shows that the applicant’s condition was diagnosed as dysthmia, anxiety, and ETOH dependence, in partial remission.

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 entitled to basic pay.

Army Regulation 635-40 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 or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 40-501 provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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 applicant was on active duty for two years and was released from active duty upon the expiration of his term of service. Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which

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was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability.

2. Notwithstanding the applicant’s implied contention, the word “controlled” on his report of medical history had no bearing on his fitness for retention. He was fit, whether or not that word was included on that report. Nevertheless, if the reviewing officer made that notation on his report as the applicant contends, it was well within his capacity to do so.

3. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4. There is no evidence nor has the applicant submitted any to show a service connected disability rating by the VA. Nevertheless, an award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.

5. 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.

6. Neither the applicant nor counsel has submitted probative evidence or a convincing argument to support his request that the word “controlled” in his 1967 report of medical history was erroneous or was unjust; therefore, there is no reason to remove that word from that report as he has requested.

7. 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 and counsel have failed to submit evidence that would satisfy that requirement.

8. 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

__RJW__ __KAN __ __REB __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058572
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011025
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	177
3.
4.
5.
6.