IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080000183 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for promotion to master sergeant, pay grade E-8, and an increase in his physical disability rating of 70 percent.  The applicant further requests a personal appearance before the Board.

2.  The applicant states in his 23 September 2007 letter to the Board, that the Board did not consider the physician's (Major H____) reassignment orders and installation clearance memorandum.  The applicant contends that these documents, when compared to the June 2004 Medical Evaluation Board (MEB), prove that the physician's name was forged after he had departed the installation.

3.  The applicant refers to email communication between Major H____ and himself between 10 and 15 June 2004, wherein Major H____ states that he has to wait for the supporting test results and final recommendations from Dr. K____ and Dr. H____.  The applicant contends that their diagnoses are not on the DA Form 3947 [implying that this was not considered by the MEB].  The applicant provides a document, dated 26 August 2004, signed by Dr. K____ stating that during the follow-up visit, the applicant brought records showing that he had suffered a closed head injury in 1992 and that his sleep apnea symptoms started soon afterward.

4.  He does not understand how the Board could come to the conclusion that it did given all of the investigative evidence that the applicant had provided.  He contends that the evidence he provided on 24 September 2007 and 9 October 2007 was proof that criminal and unethical activity transpired during the processing of his MEB from 1999 to 2004.

5.  On the promotion issue, the applicant states, in effect, that he erred in not providing all of the necessary information to the Board in order to make a determination.  He contends that he was on the promotion list for staff sergeant but was removed from the list as a result of being investigated for fraud due to his filing for payment of damaged household goods.  Afterward, he was reassigned twice and had three different commanders within the span of a year and a half.  He could not prove at the time that the investigation resulted in his promotion points not being adjusted.  He states that he does not have the promotion board packet but was extended on active duty to the retention control point (RCP) for a promotable sergeant, pay grade E-5, of 15 years.  The RCP for a non-promotable sergeant was 12 years.  In light of these events, he contends that he should be promoted to master sergeant, pay grade E-8, which is commensurate with his skills.

6.  On 17 January 2008, the applicant wrote a 17-page letter, with eight exhibits attached, to this Board.  He states, in part, that he “cannot fathom why you [the Board] came to the conclusions and decisions you did and granted no relief at all…It is my opinion that even though the Department of the Army (DA) has found Blanchfield Army Community Hospital (BACH) guilty of not following DOD and Army regulations in the processing of my case the ABCMR will frankly do nothing!”  The applicant refers to the audio file that was previously submitted and points out that the original proceedings did not specifically mention the part about his retirement orders not being available at the Physical Evaluation Board (PEB). He contends that the ABCMR “didn’t get the injuries from the 1992 accident listed correctly.”  He does not understand why his inpatient records, which he added to the second MEB proceedings, are not in his file from the VA.  “Someone removed/misplaced these medical records from my outpatient records.  I wonder who?...Could it be the same person who had a family member working in the same section of the hospital (Patient Administration Division) dealing with outpatient records.  I thought this was against regulations?  Is it the same person who tried to get them to revoke my retirement orders.  I had to present evidence that I was not currently in an MEB to get them approved.  I was also extended to retirement at the same time IAW regulations.  This is also not mentioned in your response!”

7.  The applicant also states that the original proceedings did not mention his being in charge of the Medical Holding Company and that he had first-hand knowledge of how the MEB operates.  It also did not include a mention of his duties as a technical inspector for all intermediate repairs of helicopter engines, an E-7/E-8 position for a whole division normally not held by an E-5.  [The eight exhibits attached to the letter differ from the applicant’s referral to them in his letter.]  He lists the exhibits as:  Enlisted Records Briefs (ERB) from 2004; memorandum, dated 9 July 2004; memorandum, dated 11 July 2004; appointment list Adult Behavioral Health; General S____’s response to the Honorable Carl Levin, Congressional inquiry, dated 25 April 2005; email from former supervisor; Dr. F____‘s addendum for Sergeant First Class G____ MEB; and inpatient records from motor vehicle accident 1992.  The actual exhibits attached are:  memorandum for record, dated 7 February 2000; letter to applicant from the Inspector General’s Office, dated 23 January 2004; memorandum for Commander, Blanchfield Army Community Hospital from the Administrative Law Attorney, dated 4 October 2004; MEB Proceedings, dated 15 June 2004; letter to applicant from Senator Levin, dated 10 May 2005; display of patient appointments from 16 June 2004 to 16 August 2004; the neuropsychological summary, conclusions, and recommendation, signed, but undated; and a memorandum for record, dated 17 September 2004.

8.  The applicant continues in his letter by addressing specific issues in the DISCUSSION AND CONCLUSIONS portion of the original Board proceedings.  He begins with the first paragraph that states:  “The applicant has not submitted any evidence to show that he was not properly rated for his disabilities.”  He provides the dictionary definitions for the terms “properly” and “evidence” and states that all of the evidence that he submitted had “government letterhead, stamps, or is part of my military medical file and is self authenticating according to the Federal Rules of Evidence that became effective in 1973.”  He further states that “it would appear that the Board failed to consider all of the evidence provided and the significance of the documented evidence.”

9.  The applicant goes on to ask and answer many questions (14 pages) concerning a variety of issues, making allegations and conclusions based on the eight exhibits that are not attached to the letter.

10.  On 15 February 2008, the applicant wrote another letter to this Board.  He enclosed a memorandum from Behavioral Health Service, United States Army Medical Department Activity, Fort Campbell, Kentucky, dated 11 February 2008.

11.  The applicant provides copies of Orders Number 120-0008, dated 29 April 2004; installation clearance memorandum, dated 15 June 2004; email communication between Captain J____ and Lieutenant Colonel L____, dated 14 July 2004; email notification, dated 9 July 2004, indicating that his MEB was ready for review; MEB Proceedings, dated 15 June 2004; email communication between Major H____ and himself, dated from 10 to 15 June 2004; Department of Veteran Affairs Claim Deferral, dated 18 February 2005; letter with enclosure from the United States Army Criminal Investigation Command, dated 19 October 1999; letter from Dr. K____ regarding follow-up visit, dated 26 August 2004; Department of Defense Hotline Quality Assurance Review of Completion Report, dated 6 July 2007; letter from the United States Army Medical Command, undated, acknowledging the applicant's request for information under the Freedom of Information Act (FOIA); letter and memorandum from this Board to the applicant, dated 26 September 2006; Request for Reenlistment or Extension in the Regular Army (DA Form 3340), dated 28 July 1998; Oath of Extension of Enlistment, dated 28 September 1998; email from the applicant to this Board with copy of Inspector General's Report, dated 9 October 2007; a letter from Southeast Regional Medical Command to a United States Senator, dated 25 April 2005; and a compact disc labeled "Docket #AR20050012799, Evidence."

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050012799, on 21 September 2006.

2.  The applicant provided a copy of Major H___'s reassignment orders and his installation clearance memorandum.  The orders were dated 29 April 2004 and directed a reporting date of 17 July 2004 to the United States Army Transition Point for processing and release from active duty.  The installation clearance memorandum shows that he departed the installation on 28 June 2004.

3.  On 15 June 2004, an MEB was convened to consider the applicant's medical conditions/defects.  The DA Form 3947 [a summary of the proceedings] lists fourteen diagnoses as follows:  1) right knee chrondromalacia…; 2) left knee patellofemoral pain syndrome…; 3) mild obstructive sleep apnea…; 4) gastroesophageal reflux disease…; 5) chronic fatigue syndrome with fibromyalgia...; 6) moderate persistent asthma…; 7) migrainous headaches…; 8) adjustment disorder with mixed anxiety and depressed mood, chronic; 9) irritable bowel syndrome; 10) chronic muscular back pain; 11) chronic jaw pain; 12) allergic rhinitis/sinusitis; 13) plantar fasciitis with pes planus; and 14) hyperlipidemia.  The MEB identified the applicant as a Gulf War veteran and that he had completed Phase I of the Comprehensive Clinical Evaluation Program (CCEP).  The MEB recommended that the applicant be referred to a PEB.  The MEB Proceedings indicate that the physician (Major H___) and the psychiatrist (Major F____) both signed the form.  Subsequently, on 23 June 2004, the MEB proceedings and recommendation were approved by the appropriate authority.

4.  On 26 August 2004, Dr. K____, regarding a follow-up visit by the applicant, wrote that the applicant had provided records showing that he had suffered a closed head injury in 1992 and that he applicant's symptoms relating to sleep apnea started soon afterward.  Dr. K___ examined the applicant and found that the sleep apnea was under control but that excessive daytime sleepiness was most likely [to continue].

5.  The applicant included with the original case a copy of his VA Rating decision, dated 18 March 2005, showing that he was granted a 70 percent combined rating for service-connected disabilities.

6.  Army Regulation 600-8-19 (Enlisted Promotions) provides, in pertinent part, that a Soldier who is removed from a promotion list and is later exonerated from the reason that caused the removal will be reinstated.  To be completely exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed so that the Soldier is free of any wrong doings or accusation.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), which is the prescribing regulation under which this Board operates, provides that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not warranted.

2.  The applicant's contention that the physician's (Major H____) signature was forged on the MEB Proceedings, dated 16 June 2004, is not supported by the evidence.  The installation clearance memorandum shows that the major had not departed until 28 June 2004, 12 days after the convening date of the MEB.

3.  The fact that the diagnoses by Dr. K____ and Dr. H____ are not specifically identified on the MEB Proceedings does not mean they were not considered by the MEB.  The MEB Proceedings (DA Form 3947) is a summary sheet and is not designed to show every detail.

4.  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, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

5.  An award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

6.  There is no available evidence showing that the applicant was on the promotion recommended list for staff sergeant, or that he was removed from such a list due to being investigated.  His argument that he must have been on the list because his RCP extension to 15 years would not have otherwise occurred is not sufficiently convincing.  Furthermore, even if he was on the recommended list, there is no evidence to support a finding that he ever met the cut-off score to qualify for promotion, or that he was ever denied any valid point adjustments to his promotion points.  The applicant’s contention that he should now be promoted to master sergeant, pay grade E-8, due to his skills, has no merit and should be denied.

7.  The applicant’s belief that the Board failed to consider all of the evidence that he submitted is incorrect.  The original Board proceedings list the evidence that he provided and summarizes the parts that were pertinent in the Board’s determination.  It is a matter of practice that all evidence received from an applicant is provided to the Board.  However, the proceedings which are a summary of the Board’s actions may not necessarily include a comment about every item of evidence.


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 AR20050012799, dated 21 September 2006.



      __________X__________
             CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080000183





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ABCMR Record of Proceedings (cont)                                         AR20080000183



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