MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           9 February 2000                   
	DOCKET NUMBER:   AR1999024001

	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.

	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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:  Physical disability retirement or separation.  

APPLICANT STATES:  That his physical injuries that he sustained during his January 1994 accident and his emotional condition are directly attributable to the unjust, discriminatory, and illegal treatment (including a false arrest) by his company commander.

COUNSEL CONTENDS:  That the applicant was a soldier for 29 years and was discharged from the Army Reserves in 1994.  He worked as a mechanic and motor sergeant.  In 1989 he was replaced as a motor sergeant by his company commander, without cause; subsequently, he retrained as a laundry and bath specialist.

His company commander continued to harass him, threatening to expel him from his unit which would cause him to lose his civilian job (dual status technician).  He appealed to the IG, who determined his complaint was unsubstantiated. 

On 14 December 1991 the applicant’s company commander, other officers and NCOs concluded that the applicant was under the influence of alcohol, was administered a field sobriety test, which reflected negative results; however, the applicant’s company commander insisted that the applicant undergo a breathalyzer test.  Military police handcuffed him, drove him to a location where the test was administered, and gave him the test, the results of which were negative.  When he returned to his unit, he complained of dizziness and severe chest pains; however, no action was taken.  He drove home and was involved in a minor traffic accident.  

Counsel contends that the aforementioned events were shocking and extremely humiliating and that the applicant has never been unable to overcome the feeling of embarrassment at having been led away in handcuffs.  The applicant was frustrated because he knew he was being singled out unjustly.  Upon return to Reserve drills, he felt constantly threatened, subordinates were disrespectful, and made jokes at his expense.  In January 1992 a VA physician recommended a period of convalescence  for one month because of his depression.  A VA official indicated that the applicant had been treated for major depression since 18 December 1991.  The applicant did not return to work for over 2 months, nor to drills in approximately 6 months.  His depression worsened, and he began treatment with a psychiatrist in June 1992.  He continues his treatment.  As a consequence of his symptoms, he fell from a moving truck on 4 January 1994 and injured his right shoulder.  Since then he has been unable to work.

The social security administration, in evaluating the applicant’s disability claim, concluded that he could not concentrate on and attend to work tasks on a sustained basis, maintain adequate work attendance, and interact with people, and is thus unable to adjust to work.  He continues to undergo psychiatric treatment for his depression and has been hospitalized on several occasions.  Counsel requests that the applicant’s disability be classified as service connected.

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

The applicant served on active duty from May 1960 until his release from active duty and transfer to the Reserves in May 1962 .  He continued his service in the Army Reserve until his transfer to the Retired Reserve in 1995, attaining the rank of staff sergeant. 

A 1968 VA request for medical records indicates that the applicant had submitted a disability claim because of a nervous condition which was treated in December 1961, and for a right hand fracture, which was treated in January 1967 while on active duty for training in the Reserves.

In a 3 September 1991 letter the Inspector General of the Puerto Rico Reserve forces informed the applicant that his allegation of discrimination against his company commander was unsubstantiated.   

A 14 December 1991 statement by the applicant’s company commander shows that the applicant was tested for alcohol abuse.  A statement on that same day by a military policeman indicates that the applicant was administered a field sobriety test, which the applicant passed, and at the insistence of the applicant’s company commander, the applicant was driven to a location and administered a breathalyzer test, which was negative.  The applicant was returned to his unit.  

An 18 December 1991 medical certificate indicates that the applicant had a nervous condition, that he could not sleep, that he talked to himself, and reported that his boss was after him.  In a 24 January 1992 statement, a VA official stated that the applicant was treated at the VA medical center from 18 December 1991 to 24 January 1992 for major depression, recurrent, and that the applicant should be on a period of convalescence for one month.  The applicant requested advanced sick leave from 27 January to 7 February 1992 because of impending treatment at the VA hospital.

The applicant attended annual training with his Reserve unit from 29 June to     10 July 1992, received a letter of commendation on 1 December 1992 for his effort and ability to perform during three inspections undergone by his unit from July 1992 to November 1992, and received a certificate of appreciation on          6 December 1992 for his dedication and devotion to duty during an IG inspection.

Orders reflect that the applicant attended annual training for 15 days beginning on 5 June 1993.

Medical profiles dated in August and November 1993 show that he had problems with his left knee and received a temporary profile for three months on each occasion.

A copy of the applicant’s chronological statement of retirement points shows that he attended unit training assemblies and annual training in 1991, 1992, and 1993.

On 31 May 1994 the applicant received a memorandum of appreciation for referring individuals for recruitment in the Army Reserve.

On 12 July 1994 the applicant extended his enlistment in the Army Reserve for   3 years, making his new separation date 12 July 1997.

In a 19 August 1994 statement an orthopedic surgeon stated that the applicant had severe trauma to his right shoulder on 4 January 1994, had developed severe acute depression, and had also developed severe neck and low back pain.  He was totally and permanently disabled.

In a 6 October 1994 statement to the Army Reserve Command surgeon, the applicant’s unit commander stated that the applicant had a severe job related injury to his right shoulder, and due to that injury, he had developed a severe acute depression, was receiving psychiatric treatment, and has been diagnosed with major depression with melancholy.

An NCO evaluation report for the 12 months period ending in October 1994 shows that the applicant’s rater and senior rater considered the applicant successful and proficient in his duties and responsibilities, and fully capable for promotion and service in positions of greater responsibility.  His rater indicated that the applicant had a medical profile since 29 April 1994 and that he did not meet the Army height and weight standards. 

On 19 April 1995 the applicant requested transfer to the Retired Reserve.  He was transferred on 31 May 1995.  A 28 February 1995 summary of his retirement points shows that he has 25 years of qualifying service for retired pay at age 60.

In a 30 April 1996 decision the social security administration determined that the applicant was entitled to a period of disability commencing on 4 January 1994 and to disability insurance benefits.  The applicant had applied for benefits on    21 February 1995 because of an inability to work, beginning on 4 January 1994, due to nerves and back pain.  The claim was initially denied and again denied on reconsideration.  The applicant claimed that his emotional problems began when he was unjustifiably arrested in 1991 and since then he had felt depressed.  His situation worsened in 1994 when he fell off a truck and injured his right shoulder. He could not do his job and became more depressed.  Among other things, the social security administration found that the applicant had major depression with psychotic traits and acromioplasty with excision of distal clavicle right shoulder, that the applicant’s assertions concerning his impairments and their impact on his ability to work were credible, that he lacked the residual functional capacity to concentrate on and attend to work tasks on a sustained basis, maintain adequate work attendance, and interact with people.

On 11 December 1996 the applicant was retired from his civilian technician job as a heavy mobile equipment repairer because of disability. 

In an 8 April 1998 statement a psychiatrist stated that he has treated the applicant since 22 June 1992, that the applicant suffered an accident to his right shoulder and was hospitalized on two occasions, and that the applicant was suffering from major depression and was unable to work. 

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve components who are on active duty for a period of less than 30 days or on inactive duty for training.  Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 

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

1.  The applicant has been treated for depression since December 1991 and apparently continues to be treated for depression.  Nevertheless, he continued to drill with his Reserve unit, attended annual training in 1992 and 1993, and was commended for his performance in 1992.  In July 1994 (after his January 1994 accident) he extended his enlistment for 3 years.  Both his rater and senior rater indicated in his NCO evaluation report for the 12 month period ending in October 1994 that the applicant’s performance was successful and that he was fully capable for promotion and service in positions of greater responsibility, albeit his medical profile.

2.  He injured himself in January 1994, apparently while working in his civilian job, and the social security administration in April 1996 determined that he was entitled to a period of disability and to disability insurance benefits from                4 January 1994, that in effect he could not work because of his problems with his right shoulder and because of his major depression.  

3.  This Board does not dispute that the applicant suffered from depression; nonetheless, to grant him physical disability retirement or separation based on the 14 December 1991 incident is implausible, and to associate that incident, that is to blame his January 1994 accident on his depression resulting from that incident is improbable.  The fact remains the applicant continued to do both his military and his civilian job up until the time of his accident.  He voluntarily transferred to the Retired Reserve in May 1995 and did retire from his civilian job because of disability, a disability not incurred by his military service.  His continued performance of duty after the December 1991 incident certainly indicates a presumption of fitness.  There was no basis for physical disability separation or retirement processing.  
 
4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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.

6.  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

___cjs__  ___dsj___  ___rvo___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999024001	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000209DD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108	
2.		
3.		
4.		
5.		
6.