MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 April 2002
         DOCKET NUMBER: AR2002067145

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Donald P. Hupman, Jr.		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, that he be reinstated on active duty, promoted to colonel with all due back pay and allowances, and medically retired as a colonel.

APPLICANT STATES: That he was diagnosed as suffering the symptoms of fatigability, anorexia, and malaise. He had two bouts of depression. At the time he left Vietnam, he supposedly received a physical and/or mental exam. He does not recall such an exam but he noted, when he saw it in 2000, that it did not list his skin problems and showed that he was without any mental health disorder. However, no psychiatric tests or records exist. He was not aware until 2000 that he had been diagnosed at the 67^th Evacuation Hospital with fatigability, anorexia, and malaise. The 67^th Evacuation Hospital handled soldiers suffering from stress. From his medical records he infers that fatigue meant “combat fatigue” also known as post-traumatic stress disorder (PTSD) and malaise meant he suffered two bouts of depression. He came out of Vietnam with a manic- depressive disorder and PTSD. Neither the Army nor the Department of Veterans Affairs (VA) informed him of these symptoms. In 1994 he was told that the VA money he was receiving was for being severely bipolar but the VA would not see him for PTSD. In late 1999, he received his personnel records and discovered he went from an officer evaluation report (OER) rating in the top 5 percent to a 35 percent rating with a “do not allow back in” comment. Until he became depressed, he was rated as a superior officer. Now he, with seven years of college and a law degree, is homeless. He states the Army should treat him now as it should have treated him in 1970. He would not have become bipolar if he had remained a civilian.

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

He was commissioned a second lieutenant on 10 June 1965 in the U. S. Army Reserve in the Medical Service Corps. He entered active duty on 22 July 1968.

The applicant arrived in Vietnam on or about 12 August 1969 and was assigned to the 61^st Medical Battalion as an Operations Officer. He received two OERs during this assignment. Both commented that he performed his duties in a superior manner. Both rated his promotion potential as “promote along with contemporaries.”

On 27 March 1970, the applicant was examined for a complaint of malaise, anorexia, fatigability, and just not feeling well for two weeks. He was diagnosed with viral syndrome.

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On 27 March 1970, the applicant was reassigned to Headquarters and Headquarters Detachment, 61^st Medical Battalion as the Detachment Commander. He received one OER for this period (27 March – 9 July 1970). This was an adverse report. Out of 24 categories of personal qualities, he received mostly 3 and 4 ratings (from a high of 1 to a low of 5), no 5 ratings, and 1 ratings (from either the rater or indorser) in the categories of appearance, integrity, moral courage, non-duty conduct, stamina, and tact. Out of 14 categories of performance of duty factors, he received a 1 rating only in the category of maintains an appropriate level of physical fitness. His promotion potential was rated as “do not promote at this time.” Comments were made that he performed his duties in a minimally satisfactory manner or was marginally adequate. The OER was referred to the applicant for comment. He stated, “Since it appears that AR 623-105 does not consider that a personality conflict between LTC F___ C___ (the indorser) and myself to be a fact that has bearing on the rating or remarks, I do not desire to make a statement.”

The applicant departed Vietnam on 14 July 1970 for Fort Lewis, WA. On 17 July 1970, he completed a separation physical. It was noted he had a refractive error bilateral, post-traumatic arthritis of the right ankle (with a physical profile of L-3), prostatitis (Vietnam 1969 – 1970), and a fungal infection (Vietnam 1969 – 1970). He was found to be qualified for separation.

On 19 July 1970, the applicant was released from active duty after completing his active duty commitment.

On 1 November 1994, the applicant received a mental disorders exam from the VA. A diagnosis was not made at that time. A VA letter dated 5 September 2001 indicated the applicant had been in psychotherapeutic treatment the past few months for bipolar disorder, adjustment issues related to the military, and personality disorder not otherwise specified.

Dorland’s Illustrated Medical Dictionary, 28^th edition, 1994, defines fatigability as easy susceptibility to fatigue; anorexia as a lack or loss of the appetite for food; and malaise as a vague feeling of bodily discomfort and fatigue.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

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Title 38, U. S. 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.

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. 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.

2. There is no evidence of record to show the applicant was unfit to perform his duties at the time of his separation in 1970. The Board notes that his OER for the period 27 March – 9 July 1970 showed a marked decrease in his performance of duties and potential from his previous two OERs. However, he was in a different duty position, the OER indicated that he performed his duties in a minimally satisfactory manner (not that he was unfit to perform them), and he indicated in his comments in rebuttal that the ratings and comments were the result of a personality conflict between the indorser and himself.

3. The medical definitions of the conditions for which the applicant was treated on 27 March 1970 do not indicate he had any mental health disorder and he was diagnosed as having viral syndrome. A mental status evaluation is not required with a separation physical unless there are indications of a mental disorder. The applicant has provided no evidence to show he had such indications at the time he separated. His separation physical exam did note he had a fungal infection.

4. Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. It is regrettable that the applicant has had problems with the VA; however, the Department of Defense has no jurisdiction over the VA.

5. 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

__rvo___ __rjw___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067145
SUFFIX
RECON
DATE BOARDED	20020409
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.