RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	20 November 2007  
	DOCKET NUMBER:  AR20060016941 


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



	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, through and by his counsel, requests, in effect, reconsideration of his earlier appeal to correct his separation document to show he was permanently retired, with a disability rating of 30%, and that he be entitled to back pay and allowances to the date of his separation.

2.  The applicant now also requests that he be compensated for a tongue condition, which he describes as a permanently numb right side of his tongue.  He states this condition is currently being processed by the VA.

3.  The applicant states, in effect, this condition was caused due to malpractice by a contract dentist when he extracted his lower right wisdom tooth at the Carius Dental Clinic in Yongsan, Korea.  Right after the dental surgery, he noticed that his tongue was still numb and feeling weird.  He went to the dentist and complained of the numbness.  The dentist told him that it was normal and that he should get the feeling back within 6 months to a year.  Now that time has passed and his tongue is still numb, he bites and burns his tongue on a daily basis.  This injury is also permanent and needs to be acknowledged.

4.  The applicant summarizes this portion of his request by stating, in effect, his injuries are going to be with him all his life and his condition will only get worse as time goes on.  After getting injured, he knows he is not the same person he once was.  He is weaker both physically and mentally.  He has lost his confidence, social skills, personality, and much more in order to succeed in life.  He is still seeing various doctors for his condition and it is becoming costly.  He doesn't know how much longer he can get treatment for his condition.  He provides recent documents to support his claim.

5.  In the statement prepared by the applicant, he states, in effect, he strongly disagrees with the Board's earlier decision and he is requesting that the Board reconsider that decision thoroughly.

6.  The applicant adds that he is rated as 40% disabled by the Department of Veterans Affairs (VA) and he feels that it would be more beneficial for him to have a medical retirement status.

7.  He states he incurred his injury so close to his ETS (expiration of term of service) date that his counselor only informed him about applying for VA benefits. 

He did not even know he was entitled to a medical separation.  He states he enjoyed the military and definitely wanted to make a career out of it; but, due to his injury, he felt he could not fulfill his duties as a Soldier.

8.  The applicant describes the injury to his eye/face and the events that followed, to include a description of the treatment he received.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Applicant's counsel wants the Board to understand that it was the results of the applicant's facial surgery that drove him from the Army and sent him into chronic depression.

2.  Counsel also submits new argument with respect to the face.  He states the Board rejected the use of VASRD (Veteran's Administration Schedule for Rating Disabilities) 7800 as a basis for relief.  He asks the Board to consider facial neuropathy of the right trigeminal nerve and left periorbital neuropathy.  Both of these conditions, he states, existed at the time of separation and were secondary to the facial surgery.  This condition, he states, in effect, is ratable under the VASRD at 10%.

3.  Counsel also asks that the Board consider the applicant's depression which he states is fully documented in his active duty medical records with reference back to August 2002.  This depression, he states, in effect resulted from the facial surgery.  The depression, he states, was grounded in the failed surgery which he asserts drove the applicant from the military.

4.  The VA, counsel states, has rated the applicant's depression at 30%.  Counsel states that he and his client recognize that depression, secondary to an unfitting medical condition, is not ratable; but, since the Board, in the earlier determination concluded the underlying physical condition, scarring, was not unfitting, the depression becomes an independent vehicle for determining disability.  Counsel concludes by stating he and his client recognize VA determinations are not dispositive, but in this case, the VA correctly identified that he experienced stress while on active duty and the applicant did not meet retention standards.  If he had, he would have reenlisted.

5.  In support of the applicant's request for reconsideration and presentation of his request for reconsideration of his already-considered issues and the newly presented issues, applicant's counsel provides those documents at Tabs B through E which are appended to his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR), in Docket Number AR20050008786, on 27 April 2006.

2.  The applicant submitted a collection of four Standard Forms (SF) 603 and 603A, Chronological Record of Dental Care.  These records summarize dental examinations and care he received while he was on active duty.  These records also show that on 26 February 2003, the applicant underwent a surgical extraction of a tooth (tooth number 32).  This evidence shows no evidence of follow up visits to the dental clinic for treatment for problems related to an injury he might have sustained while undergoing the tooth extraction or for numbness to the mouth, jaw, or to the tongue.  An entry does appear on the SF 603A, dated 2 May 2003, that shows he had dental pain; however, the record does not specifically identify the location at which he was experiencing this tooth pain.  The next, and last entry on the SF 603A, dated 8 August 2003, shows the applicant was out processing, it is believed in preparation for his release from active duty.

3.  The applicant contends he was, in effect, injured as the result of malpractice by a contract dentist when he had his lower right wisdom tooth extracted while he served in Korea.  There is no evidence of a commander's inquiry, inspector general's investigation, or a line of duty investigation which may have been conducted in response to a report of malpractice made by the applicant.

4.  The applicant prepared a DD Form 2807-1 Report of Medical History, in part, in conjunction with a separation physical examination.  The form was initiated on 2 May 2003.  In item 17, in response to the question, "Have you ever had or do you now have:  . . . .?" he answered "Yes" to questions:  (a) "Nervous trouble of any sort"; and, (f) "Depression or excessive worry."  To the following questions, he answered, "No."  "Have you ever had or do you now have:  (d) "Frequent trouble sleeping?"; (e) "Received counseling of any type?"; and, (g) "Been evaluated or treated for a mental condition?"  In item 30.a. (Comments), a remarks was made:  "Will be scheduled to see a psychiatrist."

5.  The evidence shows the applicant was seen at the Yongsan Health Clinic on 19 May 2003.  His chief complaint was depression and stress.  The applicant indicated he had experienced depression for 10 months following surgery.  He asked to see a psychiatrist for this depression and stress.  The DA Form 5181-R, 

Screening Note of Acute Medical Care, prepared at the time of this clinical visit, is blank in the Comments section.  A search of the applicant's records was conducted for a copy of any consultation sheet that might have been prepared if a psychiatrist was seen.  None was found.  The completed DD Form 2807-1 was signed and dated on 28 May 2003.

6.  The applicant continued to serve until 8 November 2003 when he was honorably released from active duty, under the provisions of Army Regulation 635-200, in the rank of SPC, on the expiration of his term of service.

7.  There is no documentary evidence the applicant was referred to a medical evaluation or a physical evaluation board to determine his fitness for continuation on active duty for any reason and, neither the applicant nor his counsel provided any documentary evidence of this.

8.  Applicant's counsel stated the applicant did not meet retention standards and if he had done so, he would have reenlisted.  A search of the applicant's service personnel records was conducted for any documentary evidence the applicant attempted to reenlist but did not meet retention standards.  Neither the applicant nor his counsel provided any documentary evidence to support this contention and none was found in his service personnel record.

9.  In his statement, the applicant stated he enjoyed the military and definitely wanted to make a career out of it; but, due to his injury, he felt he could not fulfill his duties as a Soldier.  The statement appears to be an announcement of a decision the applicant made exercising his option not to reenlist and choosing instead to do other things, including his return to life as a civilian.

10.  The applicant submitted a copy of two patient progress reports, dated 26 January 2006, prepared by a civilian medical doctor in Los Angeles.  The applicant consulted this doctor for left facial numbness and right severe tongue numbness.  After giving a brief history and being examined, the doctor recorded his impressions as follows:  (a) left periorbital neuropathy, (b) right trigeminal neuropathy, and (c) depression.  This consultation took place more than two years after he was released from active duty.

11.  The applicant provides a copy of a letter he received from the VA dated 3 March 2006 in which he was notified he was being awarded a 30% service-connected disability for mental trauma and 10% for "scars, status post operative 

orbital wall and left cheek fracture with nerve damage."  The applicant's overall or combined rating was established at 40%.

12.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

13.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

14.  Army Regulation 40-501 governs medical fitness standards for induction, enlistment, appointment, retention, separation, retirement, officer procurement programs, and related policies and procedures.  Chapter 3 lists the various medical conditions and physical defects that may render a Soldier unfit for further military service.  

15.  Title 10, US Code, Chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.  Section 1201, of Title 10, provides for the physical disability retirement of a member who has been found to be unfit and who has at least 20 years of service or a physical disability rating of at least 30 percent.

16.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, has neither the authority nor the responsibility for determining medical 

unfitness for military duty.  The VA awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 

DISCUSSION AND CONCLUSIONS:

1.  Consideration was given to the applicant's contention he was injured due to malpractice by a contract dentist when his lower right wisdom tooth was extracted while he served in Korea; however, neither he nor his counsel submitted any documentary evidence to support this contention.  There is no documentary evidence available in his service personnel records to show he reported such an injury and that a commander's inquiry, inspector general's investigation, or a line of duty investigation was conducted in response to such a report of malpractice.

2.  The applicant's dental records were reviewed and these records show, after his surgical tooth extraction, he presented himself at the dental clinic only twice.  He had clinical visits on 2 May 2003 for dental pain and on 8 August 2003 to 
outprocess the dental clinic.  The 2 May 2003 entry in his dental records is inconclusive and does not give any indication the follow up visit was for problems related to his surgical tooth extraction or for numbness to the mouth, jaw, or to the tongue.  The Board noted the patient progress report the applicant submitted with his request shows this consultation for numbness of his face and tongue took place more than two years after he was released from active duty.

3.  The evidence shows the applicant prepared a DD Form 2807-1 Report of Medical History, in part, in conjunction with a separation physical examination on 2 May 2003.  Due to answers he provided to certain questions related to his allegation of experiencing stress and depression, examining physicians felt he should be seen on a follow up basis by a psychiatrist.  There is evidence the applicant was seen at the Yongsan Health Clinic on 19 May 2003; however, a search of the applicant's records was conducted for a copy of any consultation sheet that might have been prepared if a psychiatrist was seen.  None was found.  Additionally, a search was made for a copy of the applicant's separation physical examination; however, it to was not found.  Absent documentary evidence to the contrary, this Board presumes administrative regularity in the release from active duty process and believes that competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was determined to be fit for separation from active duty for other than for physical disability reasons.

4.  There is no documentary evidence, and neither the applicant nor his counsel provided any, to show he had been referred to a medical evaluation or a physical evaluation board to determine his fitness for continuation on active duty for any reason.

5.  Applicant's counsel stated the applicant did not meet retention standards and if he had done so, he would have reenlisted.  The applicant stated he enjoyed the military and definitely wanted to make a career out of it; but, due to his injury, he felt he could not fulfill his duties as a Soldier.  A search of the applicant's service personnel records was conducted for any documentary evidence the applicant attempted to reenlist but did not meet retention standards.  Neither the applicant nor his counsel provided any documentary evidence to support their contention he was examined and was determined to not meet retention standards.  The preponderance of the evidence seems to indicate the applicant exercised his option not to reenlist and unilaterally choose instead to return to civilian life.

6.  Consideration was given to the applicant's contention that his separation document should be corrected to show he was permanently retired with a disability rating of 30 percent and entitled to back pay and allowances to the date of his separation; however, the evidence shows after surgical extraction of his tooth, the applicant continued to serve without any evidence of a physical disability.  The applicant also contends that he is rated as 40 percent disabled by the VA and he feels that it would be more beneficial for him to have a medical retirement status.  The applicant is advised the Board makes decisions based on the evidence of record and the specifics of the case.  It does not change the reason the individual was released from active duty simply because it would be more beneficial to have a medical discharge.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x_  __x___  ___x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050008786 dated 27 April 2006.




______x__
          CHAIRPERSON



INDEX

CASE ID
AR20050008786
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.
108.0200
3.

4.

5.

6.