MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 July 2003
         DOCKET NUMBER: AR2003086037


         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:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Eric N. Andersen		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 two earlier appeals to correct his military records by showing he was medically retired, and by correcting his separation physical examination by removing the word “Controlled” from Item 39 (Physician’s summary and elaboration of all pertinent data).

APPLICANT STATES: In effect, that he had been diagnosed as having certain mental medical problems while he was on active duty. These conditions were physical handicaps. He questions the purpose, intent and applicability of Army Regulation 40-501 and Title 10 U.S.C. Chapter 16. He contends that he had almost no duties to perform after 20 September 1967, which shows that he was physically unfit to perform his duties. The lack of medical documentation to show that he was returned to duty verifies this contention.

The applicant goes on to define the terms used in his separation physical examination, and opines that if these conditions were included in an application for a job, he wouldn’t be hired.

The applicant disputes the way the word “Presumption” was used in the Board’s denial of his request for reconsideration, and expresses his opinion that only a physician who was present at an examination would be qualified to make a presumption of his medical condition.

He reiterates his contention that someone else’s “scores” were entered on the record of examination that was prepared to record the results of his separation physical examination. He questions various entries, lack of entries, and abbreviations on his report of examination for his separation physical. He also reiterates his contention that no physician other than the physician who conducted his examination should have made any entries on his report of examination, and the fact that someone did proves that the entry was made through gross error or as an intentional attempt to deprive him of benefits. The applicant asks the Board to explain to him what, why, when and how all of the errors he perceives to have been committed in his physical examination happened without any presumption on the part of the Board.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in memoranda prepared to reflect the Board's previous considerations of the case (AR2001058572 and AR2001065525) on 25 October 2001 and 4 April 2002, respectively.

In support of his request for reconsideration, the applicant submits extracts from Army Regulations, a change in the law governing benefits to soldiers with existing prior to service medical conditions dated 5 October 1999; a Social Security Administration (SSA) decision dated 8 February 2003 which grants the applicant disability beginning 30 December 1973; and a letter from the applicant’s former wife, who married him in March 1972.
The applicant’s request contains new argument and evidence that requires Board consideration.

Army Regulation 40-501 dated December 1960, chapter 3, lists psychoses and psychoneuroses as conditions which may render a soldier medically disqualified for retention. To be considered medically disqualified for psychoses, the soldier must have a recent history of psychotic reaction sufficient to interfere with performance of duty or with social adjustment. To be considered medically disqualified for psychoneuroses, the soldier must have a severity of symptoms sufficient to require frequent hospitalization, or lack of improvement of symptoms by hospitalization, or the necessity for duty in a very protected environment. Disabilities due to personality disorders are considered to render a soldier administratively unfit rather than medically unfit. This regulation does not list anxiety as a condition, in of itself, that can be cited as medically disqualifying for retention.

Psychosis is a loss of contact with reality, typically including delusions (false ideas about what is taking place or who one is) and hallucinations (seeing or hearing things which aren't there). Personality disorders are chronic behavioral and relationship patterns that interfere with a person's life over many years. (MEDLINE PLUS Medical Encyclopedia.)

Army Regulation 15-185, sets forth the procedures for processing requests to correct military records. Paragraph 2-15b provides specific guidance to be applied in cases involving requests for reconsideration 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 to the applicant 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 applicant’s contentions concerning the entry made on his report of examination are not new argument or evidence. As such, there is no basis for the Board to reconsider that portion of his request.

2. As for his request to be medically retired, the applicant has not shown that he had a medically disqualifying condition. Without a medically disqualifying condition, there would be no basis for referring him to a medical evaluation board (MEB). Without a MEB, there would be no basis to refer him to a physical evaluation board (PEB). Without a PEB, he could not be retired due to physical unfitness.

3. The applicant states that chronic anxiety with secondary, associated problems, was his sole medical problem while he was in the service. Anxiety is not a diagnosis which could be made to refer the applicant to a MEB.

4. This scenario is consistent with the applicant’s medical records. He was hospitalized for three days in August 1966 for loss of strength and fatigue. He was returned to duty after that incident. There is no record of his ever being incapacitated after that event (e.g., placed on quarters or hospitalized). His separation physical examination shows that he was in good health with no physical profile limitations.

5. While the applicant contends that there are documents missing from his medical records, he has not submitted any evidence to substantiate that contention. The Board must review a case with a presumption of regularity, that what the Army did was correct. It is up to the applicant to prove otherwise. This is a premise that has been upheld time and again by both Federal Courts and the Comptroller General. The applicant, however, has made many presumptions, such as people either deliberately or through incompetence improperly completed his report of examination and failed to file pertinent medical records in his file, based on his perception of what transpired during his physical examination. As previously stated, he has not submitted any evidence to substantiate his presumptions.

6. As stated in the Board’s past considerations of this case, the applicant completed his enlistment and was discharged at the expiration of his term of service. He was not hospitalized or receiving extensive treatment for any condition which could be said to be medically disqualifying at that time. As such, there is no doubt that he was properly released from active duty due to completion of his required service.

7. As for the applicant’s new evidence, the extracts from Army Regulations and the copy of the change in the law governing benefits to soldiers with existing prior to service medical conditions are of no value to his request. The Board is familiar with those regulations and that change in law. They were not referenced by the Board during its first two considerations of his request because they had no bearing on his request. The SSA decision which grants the applicant disability beginning 30 December 1973 only shows that the SSA has determined that the applicant was disabled 6 years after his release from active duty; and that decision was made 36 years after his release from active duty. That decision in no way indicates that the applicant was physically unfit to perform his duties while he was on active duty, nor does it show he had a medically disqualifying condition while he was on active duty. The letter from the applicant’s former wife only expressed her observations of the applicant after her marriage to him in March 1972, which was 5 years after his release from active duty. Therefore, the applicant’s new evidence does not form the basis to grant him the relief he is seeking.

8. 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.

9. 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

___mvt __ ___fne__ ____ena _ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003086037
SUFFIX
RECON	AR2001058572/AR2001065525
DATE BOARDED
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.04
2.
3.
4.
5.
6.