MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 January 2000
	DOCKET NUMBER:   AR1999017063

	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.

			Director	
	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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:  In effect, that he receive pay, allowances and benefits in the rank of master sergeant (MSG E-8) as if he were in an active duty status beginning from the date of entry on retired status and ending on the date that he will have completed 
30 years of active service; and that he be promoted to the rank of sergeant major (SGM E-9).  He also requested correction to inspector general reports.

APPLICANT STATES:  In effect, that medical authorities in Korea were unable to provide adequate medical care for his son therefore, he had no other alternative but to retire, prematurely, from the Army and return to the Continental United States (CONUS) where adequate medical care was available.

In support of his request, the applicant submitted two three-inch, three-ringed binders containing 752 numbered documents divided by 266 tabs in 16 sections.  These documents included numerous extracts from regulations, his son’s medical consult sheets and medical reports, letters of inquiry, numerous doctor statements, extracted pages from telephone interviews, a report of inquiry, several inspector general reports, a video tape presentation, and his personal statement.  Intermingled between these documents was his discussion and personal opinion of these documents developed in a narrative as well as a question and answer format.

EVIDENCE OF RECORD:  The applicant's available military records show:

He had 2 years, 9 months and 19 days of prior active service when he entered active duty on 15 February 1977.

He served three tours of duty in Korea.  The first tour was from 22 October 1980 to 19 December 1986; the second tour from 20 July 1990 to 5 September 1991; and the third tour from 8 July 1993 to 27 December 1994. 

His DD Form 214, separation document, shows that he retired from active Army service in the rank of MSG on 31 January 1995 in accordance with Army Regulation (AR) 635-200, Chapter 12 for length of service.  He had completed 20 years, 9 months and 
5 days of creditable service.  His transition from active duty to retirement occurred at Fort Huachuca, Arizona and his most current retirement residence is listed as Sierra Vista, Arizona.

In the applicant’s statement of justification for retirement from the Army, he stated, in effect, that in February 1994, he took his son to a civilian doctor at his own expense, who then diagnosed his son with cerebral palsy; and that later, in May 1994, military doctors rendered a diagnosis of ataxic cerebral palsy.  He further stated that his son at age 26 months, could not stand or walk without support; that he required constant supervision; that he was prone to infections and accidents; that Army doctors 

misdiagnosed his son’s condition more than once; that Army doctors failed to render a timely and proper diagnosis; and that he should not have been cleared to travel to 
Korea.  He also stated that the Exceptional Family Member Program (EFMP) clinic was ill-equipped and staffed to provide adequate services for his son; that he tried to get Army medical officials to provide him with a medical diagnosis and prognosis for his son and to endorse his reassignment to the states in order to obtain adequate medical treatment for his son; and that since Army medical officials declined to endorse his reassignment, he retired from the Army to pursue adequate medical treatment for his son. 

A supplemental medical data sheet, dated 28 January 1993, indicated that the applicant’s dependents were medically cleared for assignment to Korea.

The hospitalization and medical treatment of the applicant’s son shows that a neurological exam of an abscess of his cervical lymph node in July 1993 was completely normal.  A 15-month well-baby check in September 1993, noted a developmental delay attributed to the fact that his son was not yet walking and on 15 November 1993, a military pediatrician referred his son to the EFMP for further evaluation of his developmental delay.  In December 1993, the applicant cancelled two EFMP appointments due to his son’s illness.  In February 1994, a second military pediatrician noted the developmental delay and referred his son to the EFMP for further evaluation.  After discovering the applicant’s son had already been referred to the EFMP in November 1993 but apparently without any effort, on the parents part, to pursue evaluation of development delay, the same pediatrician made an entry of “child neglect” in his son’s record but did not take any action to report the suspected child neglect as required by Army regulations.  An inpatient treatment record cover sheet pertaining to the applicant’s son, dated 22 June 1994, indicated a diagnosis by magnetic resonance imaging (MRI) of developmental delay.

Between March and October 1994, an EFMP developmental specialist and other hospital staff medical specialists evaluated his son’s developmental delay and made a tentative diagnosis highly suggestive of atonic cerebral palsy of the lower extremities.

A statement signed by the applicant’s deputy brigade commander stated, in 
effect, that the hospital denied a request from the applicant to endorse his reassignment to the US because adequate care for his son was available.  The statement did not indicate whether the applicant’s request was oral or written.

The staff of the Board noted that his son’s medical records showed entries that the applicant, on numerous occasions, requested a diagnosis and prognosis regarding his son’s condition to use in support of his application for stateside reassignment.  However, no such application was contained in his available records or in the evidence provided by him to indicate that he formally requested a CONUS reassignment or that such a request was formally denied.  

A statement from hospital officials indicated that a request to provide information or endorse the applicant’s return to CONUS was never received.  The statement further indicated that if such a statement had been received, a reply would have been provided to the applicant. 

In a letter to the Surgeon General of the Army in response to the applicant’s 
spouse’s letter of inquiry, dated 6 September 1994, the deputy commander of the military hospital in Korea stated, in pertinent part, that since the diagnosis of cerebral palsy in March 1994, the applicant’s son has been followed by a multi-disciplinary team of experts in cerebral palsy including a developmental pediatrician, neurologist, orthopedic surgeon, physical therapist, occupational therapist, special educator, and an early intervention practitioner; that this team program was equivalent to or more comprehensive than any program at stateside children’s hospitals; and that this multi-discipline approach resulted in greatly improved motor, language and social skills in his son and continued remarkable progression.

An individual service plan for the applicant’s son prepared by the servicing military hospital on 30 September 1994, indicated, in pertinent part, a course of action for current and future service for occupational therapy and special education.  A speech and physical therapy plan could not be determined since the applicant indicated that he planned to retire from the Army and leave Korea during the mid-December 1994 timeframe.

A doctor’s statement, dated 18 January 1995, indicated, in pertinent part, that a clear diagnosis of the applicant’s son was undetermined.  The statement further indicated that referral to another medical facility was appropriate to determine the existence of another kind of neurological disorder.  The Board also noted that another doctor’s statement, dated 11 August 1995, indicated that no clear diagnosis concerning his son was available.

During the processing of the applicant’s medical claim for reimbursement of out-of-pocket expenses by the U.S. Army Claims Service, an undated opinion was obtained from a neurological and pediatrics specialist at Johns Hopkins University stating, in effect and in pertinent part, that after thorough review of the evidence in his son’s medical records and video tape, his son was evaluated appropriately; and that recognition of his son’s problems would not have proceeded any faster had such evaluation occurred in another location with qualified personnel.

The applicant’s allegations that the Army medical community in Korea committed improprieties against himself and his Korean spouse and provided improper and inadequate care for his son were the subject of comprehensive investigations by the Department of the Army (DA) and Department of Defense Inspectors General (DODIG), a DA Interdisciplinary Panel Review, and an independent review by the Deputy 

Assistant Secretary of the Army for Military Personnel Management and Equal Opportunity Policy (ASA MPM&EOP).  The specific details of his allegations along with the findings and recommendations are contained in the reports of investigation, the interdisciplinary panel review record of proceedings and a DODIG letter of reply (COPIES ATTACHED). 

The Board noted that the recommendations made by these investigative agencies included providing medical officials only, and not the applicant, the results of the medical quality assurance review for consideration; having the applicant file a claim against the US to recover out-of-pocket expenses since retirement and future care that his son might have received had he remained on active duty; having him seek Secretary of the Army designee status for his son; and having him apply to this Board for reinstatement and return to active duty to gain a higher priority of medical care for his son versus that as a dependent of a retired soldier.  NOTE:  Title 10 USC, Section 1102 provides that an assessment of the quality of medical care in the Department of Defense is confidential and privileged information and may not be disclosed to any person except under several limited exceptions.

The documents in the evidence of record suggested that the recommendations were executed however, the evidence was inconclusive regarding final disposition.

A DODIG letter to the applicant, dated 2 April 1997, contained a detailed reply to the allegations concerning his son’s medical care in Korea as well as an allegation that the DAIG investigation lacked thoroughness.  The DODIG stated, in effect, after conducting a review of the DAIG investigation, independent interviews of current and former members of the medical staff in Korea, a review of Army regulations pertaining to EFMP, tour curtailment and reassignments, a review of the Early Intervention Program, a review of his son’s medical records and well-baby checks, and a review of other 
medically-related issues, the DODIG concluded that (1) hospital staff appropriately responded, in November 1993, to the applicant’s concerns regarding his son’s medical care; that (2) hospital senior staff properly denied his requests for a medical endorsement for a curtailment of his assignment in Korea; and that (3) physicians in Korea made an appropriate and timely referral to the EFMP in order to evaluate his son’s developmental delay.

In the reply to the applicant’s request for independent review by the ASA MPM&EOP, dated 3 April 1998, the ASA MPM&EOP stated, in effect and in pertinent part, that after a careful and detailed review of a complex case containing well organized documentation, no evidence of inappropriate or untimely action on the part of Army officials was found; and that no improper action by an investigative agency was found.

A review of other medical statements and related documents indicated that the applicant’s son received medical attention and treatment beginning on the second day 

after arriving in Korea and remained under almost constant medical attention until his departure from Korea.  

Review of all the supporting documentation indicated that the applicant was completely dissatisfied with the level and type of medical attention his son received while in Korea; and that he believed that all of the inquiries, investigations, and reviews into his allegations were totally biased therefore, he challenged the credibility of all the investigating agents; and that he believed a conspiracy of massive proportions was in place to protect those who prevented the truth from being told in his case.  

In the processing of this case, the staff of the Board obtained an advisory opinion from the U.S. Total Army Personnel Command (DA PERSCOM), Chief, Special Actions Branch, stating, in effect, that medical authorities already noted that appropriate medical care was available in Korea; that no such request for compassionate reassignment was ever forwarded to PERSCOM; and that if such a request had come forward, the Office of the Surgeon General would have reviewed the request and made a recommendation, likely an unfavorable one, since it had already been established that appropriate medical care was available.  The opinion added that, conversely, if appropriate medical care were determined not to be available, then the request would have likely received favorable consideration.

In response to the advisory opinion, the applicant provided a rebuttal statement, in effect, reiterating his contentions and stating that medical authorities in Korea lied regarding this case and a letter addressed to the Commander, PERSCOM that alleged the Chief, Special Actions Branch, prejudiced his case.  The applicant also submitted 93 pages of supporting documentation.  Except for his discussion developed in a question and answer format and several extracted pages from Army regulations, a review of these documents indicated that they were duplicates of documents previously submitted with his application to the Board. 

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Chapter 12 states, in effect and in pertinent part, that soldiers who have completed 20 years of active federal service and all required service obligations, are eligible for retirement and may apply for retirement within 12 months of a requested retirement date.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  After thoroughly and carefully reviewing the enormous quantity of documentation accompanying the applicant’s request, the Board certainly empathizes with the particularly unfortunate circumstances and issues relating to his son’s ongoing health dilemma.

2.  It is important for the applicant to understand that the Board is not an investigative body and there is a rebuttable presumption that what the Army did in his case was correct.  The burden of proof is on him to provide clear, convincing and compelling evidence that error or injustice occurred in his case.  In this regard, the staff of the Board spent considerable time examining his son’s available medical records and paid particular attention the quality and type of medical care and treatment his son received prior to his arrival and over the course of his tour in Korea.  The Board concludes that his son received a proper medical evaluation prior to being granted clearance for travel to Korea and an earlier determination of his son’s developmental delay or certain diagnosis of cerebral palsy was not possible. 

3.  The Board can certainly understand the applicant’s concern over the delay in reaching a determination of a possible cause, early on, or failure to find a conclusive medical diagnosis after such a long period of time.  However, given the particular medical circumstances involved that pointed to a medical condition which required a longer term of symptomatology before a certain diagnosis could possibly be determined, the Board concludes that medical officials in Korea did all that could be done, under the extraordinary circumstances involved, to provide his son the best possible care and treatment despite his deeply rooted dissatisfaction, frequently expressed throughout his presentation to the Board. 

4.  There are three statements in the evidence of record that further reinforce the foregoing conclusion as well as specifically refutes the applicant’s argument that he was “forced” into retirement from the Army due to a lack of adequate medical care in Korea.  The first statement (undated) came from a neurological and pediatrics specialist at Johns Hopkins University who said that, after review of his son’s medical records and video tape, his son was evaluated appropriately and recognition of his son’s problems would not have proceeded any faster had such evaluation occurred in another location with qualified personnel.  The Board finds it significant to mention that this statement made by a doctor at one of the most renowned civilian hospitals in the United States, was unsolicited and provided, voluntarily, incident to his request to the U.S. Army Claims Service for reimbursement of out-of-pocket medical expenses related to his son’s treatment.  The second statement dated 18 January 1995, by a doctor, who said that a clear diagnosis of his son was undetermined and referral to another medical facility was appropriate to determine the existence of another kind of neurological disorder; and a third statement made by a doctor on 11 August 1995, who said that no clear diagnosis was available.  It should also be noted that this particular statement was made nearly 2 years after the initial discovery of developmental delay in September 1993 as mentioned in the DODIG report of investigation and shown in the medical evidence of record.  

5.  The aforementioned statements also support the notion that even after his retirement from the Army and after a number of medical reviews by apparently highly specialized and highly competent stateside doctors, he has no more of a clear, concise medical diagnosis or prognosis than he had in September 1993, when developmental delay was first documented and in 1994, when the possibility of cerebral palsy was first documented by Army medical officials in Korea. 

6.  The medical evidence further revealed that once an initial determination was made that his son was developmentally delayed with ataxic cerebral palsy as the suspected cause, medical officials in Korea embarked on a deliberate yet progressive regimen that included EFMP referral, physical and occupational therapy, and early education intervention.  The Board noted that evidence indicated that medical officials were careful not to make a certain diagnosis prematurely since the characteristics of this particular disease manifests gradually through various stages of maturity based on age.  Also, referral to the Army’s EFMP was a necessary course of action in order to obtain a more comprehensive evaluation of his son’s condition and thereby allow him, as well as his parents, to receive full and complete access to all available services, as a family unit, so that they might more effectively confront and deal with the emotional, physical, and psychological ramifications associated with such a debilitating disease as cerebral palsy. 

7.  The Board also found that after all of the investigative agencies conducted their extensive reviews into the facts and circumstances of the case, they similarly concluded that the medical care provided to his son by medical officials in Korea was appropriate.  Accordingly, the Board did not find any error or injustice in the prosecution of their investigations and their findings reached by the preponderance of evidence standard.

8.  Regarding his request for CONUS reassignment, despite the absence of any corroborating or substantiating evidence to indicate that he formally requested a medical endorsement including a diagnosis and prognosis for his son in support of reassignment to CONUS in order to seek further medical treatment, the Board concludes that medical officials in Korea acted appropriately by denying, apparently, his verbal request for assistance since medical care was available in Korea.  

9.  Notwithstanding the decision by medical officials in Korea to deny support for his reassignment to CONUS, as a first sergeant of considerable military experience who has himself very likely counseled many other soldiers facing similar circumstances, he should have been aware that he could have pursued another option available to him rather than immediately request retirement as a means to return to CONUS.  Since he was dissatisfied with the level of medical treatment being provided for his son, he could have requested the early return of his dependents in accordance with applicable Army regulations and then requested an extended leave.  By doing so, he could have 
personally assisted his family in establishing CONUS residency, sought other medical 
treatment and another medical opinion regarding his son’s condition, and thereby, be afforded the opportunity to continue his military career and then retire, possibly under more favorable circumstances. 

10.  Finally, even though he was very likely under considerable distress at the time, he made a conscious decision to exercise his legal right to voluntarily retire from the Army in order to return his family to CONUS and for which the Board found no error or injustice.

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

12.  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

__JS____  ___IW___  ___LS___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017063	
SUFFIX		
RECON	NA	
DATE BOARDED	20000112	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19950131	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	RETIREMENT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.