IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010082 


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 correction of his military records to show that he was retired due to physical disability.

2.  The applicant states, "I've ran out of time!  I must mail this today or you want [won't] except [accept] it?"  He has also highlighted much of the original Record of Proceedings (ROP), entered pen and ink notations, and written specific comments about paragraphs 2, 4, 5, 6, 7, and 8 in the Consideration of Evidence.

3.  The applicant argues the following paragraphs in the CONSIDERATION OF EVIDENCE section of the original ROP:

	a.  paragraph 2:  The applicant questions how he could have received a fair and impartial review if all of his military records were not available.  He contends that the Board only considered the very end of his service, doing away with the first 2 1/2 years of his service.  This made him look like a basic training drop out.

	b.  paragraph 4:  The applicant states that this paragraph contains the wrong dates.  He contends that he was admitted to the hospital in January and was unconscious for 2 days.  He admits to receiving orders to report back to his unit but that the doctor said he could do what he wanted.  He had taken a lot of morphine for pain.  The next day, he was taken back to his company and carried up to his room.  He could not walk or talk very well.  He was made fun of and called names.  This went on until 20 May 1985, when he was readmitted to the hospital.
	c.  paragraph 5:  The applicant states that this paragraph is very contradictory.  He questions the stated diagnosis given his horrible brain injury.  He claims he was in the hospital until 2 July, when he was sent home.

	d.  paragraph 6:  The applicant contends that his desire not to return to his old unit was used against him.  He states that he was almost killed at Fort Ord and he was treated like a "dumbass faking flunky."  He did not ever want to go back there.  The applicant also states, "my words were turned on me again and now you told me on the phone, that I cried my way out of the military!!"  "That's a bald face lie and is so F$&#ed up, it outrages me and everybody I know in my life that has suffered from the basic fact that the Army tried and did cover up a HATE CRIME against me for the better good of the military!!"  He questions how any of his medical conditions could have existed prior to his entering the Army.  He contends that any medical problems would have been discovered during his entrance physical.

	e.  paragraph 7:  The applicant states that this paragraph is contradictory to the later comment that he had cried his way out of the military.  He contends that the racist assault on him was not mentioned in an effort to cover up the incident.  He states that his attorney has all of his documents and the Board is welcome to go see them and discover how messed up his life still is.  He has every record, which is a lot more than the Army has.

	f.  paragraph 8:  The applicant states he was not present for the PEB.  He implies that the back page of the DA Form 199 (PEB Proceedings) is missing by design so that the Army can deny what really happened.

4.  The applicant provides copies of the original ROP (highlighted with numerous pen and ink notations); compact disk with magnetic resonance images (MRI); Aid and Attendance Letter, Department of Veterans Affairs (VA), dated 12 November 2009; DA Pamphlet 40-501 (Hearing Conservation Program); VA Consult Request, undated, but printed on 10 January 2010; traumatic brain injury information sheet from Mount Sinai Medical Center via the internet, printed on
18 January 2010; letter from Dallas Family Medicine, dated 30 July 2007; letter from South Point Family Practice, dated 21 March 2007; DD Form 214 (Certificate of Release or Discharge from Active Duty); and a letter of support from his mother.

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 AR20080017889, on 29 January 2009.

2.  The applicant's request for reconsideration was not received within one year of the original board consideration; however, it is being considered as an exception to the one-year policy because of the applicant's concern about mailing his request in time.

3.  The documents, except for his DD Form 214, submitted with this request were not previously considered by the Board.  Therefore they are new evidence that warrants consideration.

4.  In the original ROP, the applicant requested to be medically retired instead of honorably discharged due to a physical disability.   The Board reviewed the available records.  The discussion section of the ROP indicates that the applicant had suffered from a medical condition that rendered him unable to satisfactorily perform his duties.  He was consequently evaluated by both a medical evaluation board (MEB) and a physical evaluation board (PEB).  He had concurred with the MEB's findings and recommendations and indicated that he did not desire to remain on active duty.  The PEB found him physically unfit based on a 10 percent disability rating percentage for organic brain syndrome and recommended his separation with severance pay.  He was subsequently discharged due to a physical disability.  The Board determined that the evidence presented did not demonstrate the existence of a probable error or injustice.

5.  The new documents provided by the applicant include:

	a.  A CD containing two head/brain scans, without dye and contrast, taken on 
30 September 2009, showing right side and top down views.

	b.  An Aid and Attendance Letter, dated 12 November 2009, indicating that the applicant was diagnosed on 30 September 2009 with a brain injury.  The letter reported a fair prognosis and that he needed help with bathing and walking.  He also had left hemiplegia [paralysis of left side of body].  He needed another person's protection from ordinary hazards of his daily environment.  He also had a loss of memory, poor balance that affects his ability to ambulate, and needed help to travel beyond the premises of his home.

	c.  DA Pamphlet 40-501 (Hearing Conservation Program):  The applicant noted on the cover of this pamphlet that it had nothing to do with the MEB or PEB.  The original ROP referred to Army Regulation 40-501 (Standards of Medical Fitness) as the governing regulation for MEB and PEB processing.

	d.  VA Consult Requests, printed on 19 January 2010, indicate that the applicant had a personal history of traumatic brain injury and that equipment was requested to increase his safety and his ability to function independently.

	e.  A general information sheet from Mount Sinai Medical Center that discusses what happens to the brain at the point of injury and immediately thereafter.  The paper defines severity of injury, discusses length of recovery and how recovery is measured.

	f.  A letter from Dallas Family Medicine, dated 30 July 2007, states that at the time the applicant was their patient.  His medical problems included, but were not limited to, post traumatic brain injury and resulting cognitive impairment disorder.  He also suffered from depression and anxiety as a direct result of the injury.

	g.  A letter from South Point Family Practice, dated 21 March 2007, states that the applicant was their patient.  His medical problems included, but were not limited to, post traumatic brain injury and resulting cognitive impairment disorder.  He also suffered from depression and anxiety as a direct result of the injury.

	h.  A 5-page, handwritten letter of support from the applicant's mother, dated 15 January 2010, essentially states how the applicant was jumped on by a bunch of black Soldiers.  His company commander had taken him out of the hospital and told her that he was alright and just needed to be motivated.  She was told by his friends that he had been so badly hurt that they had to help him dress and carried him down three flights of stairs to stand in formation.  When the formation would be ordered to drop for pushups, the applicant would fall on his face.  He could not go to eat and could not get his chain of command to understand he was very seriously injured.  Against the company commander's wishes, the applicant was placed back into the hospital at Fort Ord and he was subsequently transferred to Letterman Army Medical Center (LAMC) where he could get the required medical treatment.  She further states that the Army told her that the applicant had only 6 months to live.  It is her belief that because the Army never expected him to live that he did not receive the proper medical treatment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he was retired due to physical disability.

2.  The additional documentation clearly shows that the applicant had and continues to have a serious medical condition.  However, none of the evidence clearly shows that the decisions of the MEB and PEB were wrong at the time.

3.  The applicant has implied that he has not received a fair and impartial consideration of his case.  He believes that the circumstances surrounding the attack and his subsequent periods of hospitalization were being covered up by the Army.  Unfortunately, it has been more than 25 years since the events that led to his injuries making it nearly impossible to adequately investigate and determine what, if any, wrongs were done.  Furthermore, this Board is not an investigative agency that can, or should, undertake such a tasking.

4.  The sole issue in this case is whether the rating determination made by the PEB at the time of his discharge is correct.  The available evidence and the applicant's repeated arguments are insufficient to overturn the original Board's decision.

5.  In view of the above, the applicant's request should be denied.

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 AR20080017889, dated 29 January 2009.



      ____________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)                                         AR20100010082



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ABCMR Record of Proceedings (cont)                                         AR20100010082



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