MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 23 July 2002
         DOCKET NUMBER: AR2002073927


         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Hubert O. Fry		Member
Ms. Gail J. Wire		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeals to correct his military records by showing he was medically retired upon his release from active duty.

APPLICANT STATES: That he feels tortured because of the loss of his sight after a Department of Veterans Affairs (DVA) surgical procedure on his sinuses, and he believes that someone needs to take responsibility for the loss of his sight. He also states that he was traumatized by his parents and wants a divorce from them.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records that were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AC92-07098) on 9 December 1992.

The staff of the Board administratively closed the applicant’s initial requests for reconsideration on 10 July 1996, 2 October 1996 and 13 May 1997, respectively, due to the applicant not submitting any new evidence. The Board denied his fourth request on 16 September 1998. Subsequently, he has submitted two additional requests for reconsideration, which were administratively closed by the staff of the Board on 25 February 1999 and 15 April 2002, for failure to submit any new evidence.

In support of his application, he submits a document from a physician in which it is stated that the applicant suffers from post-traumatic stress disorder (PTSD) due to a head trauma he incurred in the Army in July 1973; that he suffers from a brain contusion with post-contusion syndrome due to a head trauma he incurred in the Army in July 1973; that he suffers from grand mal convulsive seizures, due to a head trauma he incurred in the Army in July 1973; that he suffers from organic brain syndrome, due to atrophy of the right side of the brain, due to a head trauma he incurred in the Army in July 1973; that he suffers from a lesion in his ears and brain stem, due to a head trauma he incurred in the Army in July 1973; that he suffers from spasmodic torticollis, due to neck and head injury he incurred in the Army in July 1973; that he suffers from right post-traumatic tempero-mandibular joint arthritis due to an accident he incurred in the Army in July 1973; that he suffers from neuro-sensory hearing loss with tinnitus aurium, due to a head trauma he incurred in the Army in July 1973; that he suffers from vasomotor rhinitis, mild; that he has a history of having injured his head on the right side and top of head at work in 1977; and that he has a childhood history of petit mal seizures.





Also submitted by the applicant are selected DVA medical records. One of these records is a neuropsychological evaluation, in which the applicant reported that during basic combat training, he was struck in the head by a drill instructor on one occasion, and attacked and knocked unconscious by other soldiers on another occasion. After he completed his initial training and was assigned to a unit, he was attacked by other soldiers, thrown against the wall, and beaten. On another occasion he was thrown out of a jeep that had lost control, resulting in a loss of conscious. On yet another occasion, he was again attacked by other soldiers and then given an involuntary injection of a “high dose” of heroin. But the most significant head injury appears to have been incurred in Germany in 1973, when a group of soldiers slammed a door on his head multiple times, resulting in a loss of conscious for 45 to 60 minutes in duration. The applicant also reported that after his military service, while working for a civilian company, he hit his head on a nail, which was protruding from a palette. He reported that he began experiencing severe difficulties with cognitive functions immediately following this injury. The psychiatrist classified him under the Diagnostic and Statistical Manual as (1) Rule out late effects of closed head injury (2) Consider schizoid personality disorder, and (3) History of multiple head traumas.

The applicant’s contentions are new argument that requires Board consideration.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.







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 document from the civilian physician, submitted by the applicant and accepted as new evidence, has been carefully considered by the Board. While this document is undated, there is no indication that this physician treated the applicant while he was on active duty. Therefore, it is questionable how he determined that the applicant’s medical conditions were due to injuries he incurred while on active duty. This is especially true in consideration of the fact that there is only one documented instance where the applicant was treated for a head injury while on active duty, that being on 24 June 1973, and the applicant was determined medically qualified on 9 October 1973, during a separation medical examination. Additionally, by his own admission, the applicant says he only began experiencing severe difficulties with cognitive functions after he hit his head on his civilian job, an injury that occurred 4 years after his release from active duty.

2. The records do show that the applicant was in a patient status subsequent to his separation medical examination, but the records do not indicate why he was a patient. However, the applicant requested early release from active duty by stating that he had been released from doctor’s care from that period of hospitalization. As such, it must be presumed that the medical condition for which the applicant was hospitalized was successfully treated and resolved.

3. With all the evidence indicating that the applicant was medically qualified for separation, and with evidence, which shows that he sustained a major head injury four years after his release from active duty, the Board concludes that the applicant was properly released from active duty for non-medical reasons. If any service related medical conditions became disabling subsequent to his release from active duty, the DVA is the proper agency to treat those conditions and compensate the applicant for any loss of social or industrial capacity.

4. The Board and the staff of the Board have considered numerous requests from the applicant and have consistently determined that the evidence does not support his claim that he should have been medically retired when he was released from active duty. Medical documents from examinations and treatment received after he was released from active duty contribute little to establish either medical disqualification or physical unfitness when he was on active duty. As a general rule, for the Board to grant a request of this nature, it must be shown that, while on active duty, an applicant had a medical condition which would have been determined to be disqualifying if it had been properly diagnosed, and would have been determined to be physically unfitting. In the absence of such evidence, there are insufficient grounds to grant his request.

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

___hof___ ___gjw__ ____jlp__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002073927
SUFFIX
RECON	19921209
DATE BOARDED	20020723
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	1108.00
2.
3.
4.
5.
6.