MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 March 2002
         DOCKET NUMBER: AR2001062089

         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
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Roger W. Able		Member
Mr. Walter T. Morrison		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: That he be reinstated in the Virginia Army National Guard (VAARNG) effective 1 November 1996. He also requests, in effect, that he be provided a new Mental Health Evaluation and a new Physical Evaluation Board and be awarded a 50 percent disability rating or that the wrongful separation stand and that he be awarded back pay and allowances from 1 November 1996 to present.

APPLICANT STATES: That his commander had him improperly referred for an outpatient mental health evaluation on 27 March 1995 and that he was denied all of his rights which resulted in a wrongful separation from the military. He states that the commander again referred him for a mental health evaluation on 11 January 1996 and that he was denied all of his rights. He continues that he was held in the hospital for 3 days without a reviewing officer appointed and without a review, which resulted in a wrongful separation from the VAARNG on 31 October 1996. He goes on to state that the Department of Defense Inspector General Hotline received a copy of his entire packet and advised him that he had the right to submit an application to this Board. He states that the battalion and brigade commanders admitted to the Inspector General (IG) that they were not aware of the notification procedures nor were they aware of his rights when he was referred to the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB). He concludes by stating that he does not desire that action be taken against anyone for violation of his rights; however, he has suffered substantial financial loss and mental and emotional stress by the actions of others in the military. In support of his appeal, he submits a chronology of events and what appears to be a complete copy of all of the documents contained in his Military Personnel Records Jacket.

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

After he completed prior enlisted service, he was appointed as a second lieutenant effective 24 September 1978, while he was on an Active Guard/Reserve Program tour in the VAARNG.

He was promoted to first lieutenant effective 24 September 1981 and to captain on 23 September 1985.

The record shows that on 27 March 1995, the applicant’s battalion commander referred him to the Community Mental Health Activity (CMHA) for a mental status evaluation. The commander indicated that his reason for the applicant’s referral was based on his isolating himself in the office and often getting very defensive. The commander also stated that he had spent several nights in his office rather than to go home and continuously thinks that people are out to get him. The commander further stated that the applicant, on several occasions, complained that his office, car, and home were bugged. The commander noted that he had been separated from his wife for several months and that his wife indicated that it was due to his unusual behavior.

On 12 January 1996, the applicant was hospitalized for 7 days and the admitting diagnosis was depression. He was later diagnosed as suffering from a delusional disorder.

A line of duty (LOD) determination was conducted on April 30 1996, as a result of the applicant’s 12 January 1996 hospitalization. It was determined that his injury occurred on 11 January 1996, when he became incoherent and disoriented while performing staff duties during a state emergency snow duty operation, and his injury was incurred in the line of duty.

On 1 July 1996, MEB proceedings were conducted to determine whether the applicant should be referred to a PEB for evaluation. The MEB determined that the applicant was suffering from a delusional disorder, persecutory type, manifested by exaggerated concerns that co-workers have bugged his home, office and car; paranoid personality traits manifested by preoccupation with unjustified doubts about loyalty of friends or associates, reluctance to confide in others because of unwarranted fear that the information will be used maliciously; and problems with primary support group, problems related to social environment and occupational problems. The MEB determined that he should be referred to a PEB for evaluation and the applicant concurred with the decision made by the MEB.

An informal PEB was conducted on 21 August 1996, to determine the applicant’s fitness for retention on active duty. The PEB indicated that based on a review of the medical evidence of record, at that time, his medical condition prevented satisfactory performance of duty in his grade and military occupational specialty and that his condition had not stabilized to the point that a permanent degree of severity could be determined. The PEB assigned him a 30 percent disability rating for the delusional disorder and they recommended that he be placed on the temporary disability retired list (TDRL) with reexamination during the calendar year 1998. The PEB informed him that although his disability was rated at 30 percent, he would actually be in receipt of 50 percent of his retired base pay, per month, until he was removed from temporary status.

On 27 August 1996, the applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing of his case.

Accordingly, on 31 October 1996, the applicant was retired under the provisions of Army Regulation 635-40, by reason of physical disability with an assigned 30 percent disability rating and he was placed on the TDRL on 1 November 1996.

In a memorandum to The Adjutant General of Virginia, incorrectly dated 19 February 1996, received by the Adjutant General’s office on 27 February 1997, the applicant requested that an inquiry be made into the procedures used by his chain of command that led to his MEB proceedings. In the memorandum, he stated that his battalion commander failed to provide him with a proper written notice of referral for his mental health evaluation and a list of his other rights since he was being referred for an evaluation. He further stated that his commander failed to secure two witness statements, one of which should have been his, when he was referred for his LOD determination. He went on to state that his commander failed to advise him in writing that he did not have to make a written statement concerning his medical condition and that his commander failed to counsel him on a disability counseling statement. He also stated that his commander never provided him with a copy of his physical profile prior to the MEB proceedings and that he was not allowed to read his entire MEB proceedings prior to signing it. He stated that an act of revenge may have been committed by one or more officers against him for making protected disclosures to the VAARNG IG, to law enforcement organizations, to a member of his chain of command, and for hiring two private investigators. He concluded by stating that there may have been discrimination against him due to age and handicap

On 30 March 1999, the VAARNG, office of the Adjutant General responded to the applicant’s memorandum acknowledging that his allegation that his commander improperly failed to inform him of his rights when he was referred for a mental health evaluation in April 1995, was substantiated. He was informed that both his former brigade commander and his former battalion commander stated that they were not aware of the notification procedures or the rights that he had when they referred him for the evaluation. He was further informed that his allegation that the LOD determination was improperly completed was not substantiated because that packet that he furnished to them for review contained two witness statements along with the MEB process packet which he signed acknowledging that he had been counseled regarding his disability evaluation. In the response from the office of the VAARNG Adjutant General, the applicant was informed that while it may or may not have been true that the Adjutant did not know the procedures for an informal LOD determination, this as well as the other omissions he alleged were not sufficient to invalidate the LOD determination. The applicant was also informed that his allegation that the battalion adjutant improperly failed to provide him with a copy of his physical profile was not substantiated. He was told that there was no requirement in Army Regulation 40-501 that he be provided a copy other than the copy that the medical treatment facility (MTF) is supposed to file in his health record. He was also told that Army Regulation 40-501 requires the MTF to send the original and one copy to the company commander, but the regulation does not specify that the commander or



anyone else is required to provide him with a copy. He was informed that Army Regulation 40-501 contemplates that the company commander will sign the profile, but that it does not necessarily preclude a brigade commander from doing so. The response from the office of the VAARNG Adjutant General went on to include that in regard to his allegation that he was not allowed to read the entire MEB proceedings, the PEB Liaison Officer stated that the applicant meticulously read the completed MEB proceedings in his office and that he (the applicant) signed it, stating that he had been informed of the approved findings and recommendation and that he agreed.

On 14 September 1998, a PEB convened and the applicant was reevaluated for the medical condition (delusional disorder) for which he had initially been assigned a 30 percent disability rating. The PEB determined that the 30 percent disability rating accurately reflected the degree of severity of his condition and they considered his condition to have stabilized sufficiently for rating purposes. The PEB recommended permanent disability retirement with a 30 percent disability rating.

On 23 September 1998, the applicant concurred with the findings and recommendation and he waived his right to a formal hearing in his case.

Accordingly, on 6 October 1998, he was removed from the TDRL and he was placed on the permanent disability retired list.

Army Regulation 40-501, at chapter 3, provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

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 medical evidence of record indicates that the applicant was medically unfit for retention in the VAARNG at the time of his separation. He has submitted no probative medical evidence to the contrary.

2. His allegations regarding violation of rights are unsupported by the evidence of record. Although, in fact, he was not informed in writing regarding his referral for a mental health evaluation, there is no evidence of record that shows that the information contained therein is incorrect and it does not justify his being entitled to another mental health evaluation or another PEB.




3. The evidence of record clearly shows that the MEB and the PEB proceedings were properly conducted and he concurred with the findings and recommendations of both boards. He was properly retired as a result of his disability and he has not submitted any evidence or argument, which would cause this Board to question the correctness of the percentage of disability he was awarded by the Army. Therefore, there is no basis for granting his request to be reinstated in the VAARNG.

4. The applicant's contentions do not demonstrate error or injustice in the disability rating assigned to him by the Army, nor error or injustice in the disposition of his case by his separation from the service. Consequently, he is not entitled to an increase of his assigned disability rating and he is clearly not entitled to any back pay and/or allowances.

5. 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 has failed to submit evidence that would satisfy this requirement.

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

___jhl ___ __rwa___ __wtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062189
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/14
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177	108.0000
2. 179	108.0200
3. 192	110.0300
4. 274	125.0000
5.
6.