RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 March 2006
      DOCKET NUMBER:  AR20050011086


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Carol A. Kornhoff             |     |Member               |
|     |Mr. Rowland C. Heflin             |     |Member               |

      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 requests that his separation be changed to a disability
retirement; that his Army Achievement Medal (AAM) be upgraded to an Army
Commendation Medal (ARCOM); that he be awarded an AAM; and that his Officer
Evaluation Reports (OERs) dated after 20 September 2000 be removed from his
records.

2.  The applicant states that during his assignment to Company B, 1st
Battalion, 505th Parachute Infantry Regiment (PIR), 82d Airborne Division,
he sustained a traumatic brain injury.  He was not treated adequately and
was not considered for a medical discharge.  He was called a "snot-nosed
punk" by his company commander and ordered to resume normal duties in spite
of his clear inability to do so.  His medical records since that time
indicate that he is now, and was then, medically unfit for service.

3.  The applicant states he should have been recognized with the same
awards that were customarily awarded to Soldiers transitioning out of the
Army or changing duty stations.  He states his performance reviews should
have considered his disability.  Instead, his performance reviews
presupposed an officer who was fully capable and completely healthy.

4.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a note from Brigadier General M___; service
medical records; and current medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant requested correction of his records to show his AAM was
upgraded to an ARCOM and to award him another AAM.  In the absence of
proper award authorities for these decorations, the applicant may request
upgrade of his currently-awarded AAM, and award of the ARCOM, under the
provisions of section 1130 of Title 10, U. S. Code.  He has been notified
by separate correspondence of the procedures for applying for these
decorations under section 1130 and, as a result, these issues will not be
discussed further in this Record of Proceedings.

2.  The applicant entered active duty as a second lieutenant on 13 December
1998.  He completed the Infantry Officer Basic Course and Basic Airborne
Training.  He was assigned to Company B, 1st Battalion, 505th PIR, 82d
Airborne Division, Fort Bragg, NC.

3.  On or about 20 September 2000, the applicant suffered a head injury
when landing after a parachute jump.  On 26 September 2000, he was given a
temporary profile of no airborne operations and light indoor duty not to
exceed a 10-hour work day due to concussion.

4.  On 10 October 2000, the applicant was seen for a complaint of continued
pain, decreased vision, nausea and insomnia from his concussion.  A CT
(computed tomography) scan revealed no evidence of a defect.  His profile
was continued.  He was seen several subsequent times for complaints related
to his concussion.

5.  The applicant was promoted to first lieutenant on 29 November 2000.

6.  A Community Mental Health Services Progress Note dated 12 June 2002
indicated the applicant continued to suffer symptoms that included
persistent sadness, anhedonia (a total loss of feelings of pleasure in
things that should give pleasure), anxiety, irritability, increased
emotional reactivity, fatigue, sleep dysfunction, decreased appetite, and
recurrent headaches.  He was diagnosed with postconcussional disorder
(cognitive disorder not otherwise specified).

7.  The applicant was promoted to captain on 1 October 2002.

8.  The applicant was released from active duty on 13 November 2002 upon
the completion of his required active service.

9.  The applicant's Officer Evaluation Report (OER) history is as follows:

      OER for the period 24 March 2000 – 17 January 2001 while serving as a
platoon leader assigned to Company B, 1st Battalion, 505th PIR, 82d
Airborne Division, Fort Bragg, NC:  His rater rated his performance and
potential as "outstanding performance, must promote."  His senior rater
rated his promotion potential as "best qualified" with a center of mass
comparison rating.

      OER for the period 18 January 2001 – 3 July 2001 while serving as the
Brigade Assistant S-1 assigned to Headquarters and Headquarters Company, 3d
Brigade, 82d Airborne Division, Fort Bragg, NC:  His rater rated his
performance and potential as "satisfactory performance, promote" with all
comments similar to "(the applicant) displayed steady improvement in a very
demanding duty position."  His senior rater rated his promotion potential
as "fully qualified" with a center of mass comparison rating and comments
similar to "(the applicant) is a tremendous asset to the Regiment."

      OER for the period 4 July 2001 – 14 November 2001 while serving as
the Assistant Regimental S-1 assigned to Headquarters and Headquarters
Company, 3d Brigade, 82d Airborne Division, Fort Bragg, NC:  His rater
rated his performance and potential as "outstanding performance, must
promote."  His senior rater rated his promotion potential as "best
qualified" with a center of mass comparison rating.

      OER for the period 15 November 2001 – 21 May 2002 while serving as
the Company Executive Officer assigned to Company F, 1st Battalion, 28th
Infantry Regiment, Fort Jackson, SC:  His rater rated his performance and
potential as "outstanding performance, must promote."  His senior rater
rated his promotion potential as "best qualified" with a center of mass
comparison rating.

10.  A Department of Veterans Affairs neuropsychological evaluation, date
of evaluation 26 September 2005, shows the applicant was diagnosed with
mood disorder due to a general medical condition; anxiety disorder due to a
general medical condition; psychotic disorder due to a traumatic brain
injury, with delusions; and cognitive disorder not otherwise specified.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  In pertinent part, it states that the mere presence
of an impairment does not, of itself, justify a finding of unfitness
because of physical disability.  In each case, it is necessary to compare
the nature and degree of physical disability present with the requirements
of the duties the Soldier reasonably may be expected to perform because of
his or her office, grade, rank, or rating.

12.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The DVA, however, is not required by law to
determine medical unfitness for further military service.

13.  Army Regulation 623-105 establishes the policies and procedures for
preparing, processing and using the OER.  The regulation provides that an
OER accepted for inclusion in the official record of an officer is presumed
to be administratively correct, to have been prepared by the proper rating
officials and to represent the considered opinion and objective judgment of
the rating officials at the time of preparation.  In pertinent part, it
states that, to ensure that sound personnel management decisions can be
made and that an officer's potential can be fully developed, evaluation
reports must be accurate and complete.  Each report must be a comprehensive
appraisal of an officer's abilities, weaknesses, and potential.

14.  Army Regulation 623-105 also states that, to justify deletion or
amendment of a report, evidence that clearly and convincingly nullifies the
presumption of regularity must be produced.  Clear and convincing evidence
must be of a strong and compelling nature, not merely proof of the
possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant suffered a head injury when landing
after a parachute jump, and it is acknowledged that he has been diagnosed
with several neuropsychological disorders since his separation.  However,
it is not clear that he was medically unfit for service and there is no
evidence of record and he provides none to show that he was unable to
perform his duties.

2.  The applicant contends his performance reviews "presupposed an officer
who was fully capable and completely healthy" and that they should have
considered his disability.

3.  OERs (i.e., his "performance reviews") do not "presuppose" anything.
OERs are required to be a comprehensive appraisal of an officer's
abilities, weaknesses, and potential.  They are a factual representation of
the rating officials' evaluations of the officer's performance during a
specified rating period and an evaluation of that officer's future
potential based upon his performance during a specified rating period.

4.  The applicant requests that his OERs dated after 20 September 2000 be
removed from his records.  All of those OERs show the applicant was highly
rated and performed his duties extremely well, including the OER he
received upon his departure from Company B, 1st Battalion, 505th PIR, 82d
Airborne Division.  He was promoted to captain based in large part on those
OERs.  He provides no evidence to show he ever questioned or appealed those
OERs based upon inaccurate evaluations of his duty performance.  There is
insufficient evidence on which to base removing those OERs from his
records.

5.  The rating action by the DVA does not necessarily demonstrate an error
or injustice on the part of the Army.  The DVA, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  The
DVA is not required by law to determine medical unfitness for further
military service in awarding a disability rating, only that a medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  Consequently, due to the two concepts involved
(i.e., the more stringent standard by which a Soldier is determined not to
be medically fit for duty versus the standard by which a civilian would be
determined to be socially or industrially impaired), an individual’s
medical condition may be rated as disabling by the DVA although he was not
found to be medically unfit by the Army.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __cak___  __rch___  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 for correction of the
records of the individual concerned.




                                  __John T. Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011086                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060330                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |111.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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