MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 December 2000   
	DOCKET NUMBER:   AR2000039082

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 be medically retired.

APPLICANT STATES:  He was injured in a vehicle accident in June 1992 while participating in annual training.  He notes that as a result of the accident he underwent four separate operations.  He states, in effect, that the vehicle accident damaged his abdomen and that his right kidney is not working, that his left arm and leg are still painful and numb and that he suffers from alcohol dependence.  He states that as of December 1998 his “generalized anxiety disorder with depressive features was increased from 50% to 70% by the VA administration.”

The applicant states that he underwent a Medical Evaluation Board (MEB) in April 1993 but in October 1993 he “received the finding of ‘fit for duty’ with a permanent physical profile from the MEB.”  He notes that he did not concur and requested re-evaluation.  He states that in January 1995 he was ordered to active duty for 5 days to undergo a MEB at Fort Gordon.  However, after 9 days he still had not received any treatment and “decided to go back to PR [Puerto Rico].”  He states that “when the staff of the hospital” found out his intentions he was referred for a psychiatric evaluation.  The applicant indicated that the psychiatrist wanted to transfer him to the psychiatric floor.  However, the applicant informed the psychiatrist and a member of his United States Army Reserve (USAR) unit that while he had “no problem with the treatment” he would not accept such treatment unless he received “new orders or an extension” of his current orders.  The applicant states that he did not receive the extension or any new orders so he “came back to PR.”

The applicant continued by stating that in July 1995 he wrote a letter to President Clinton concerning his problems and ultimately received a letter from his unit personnel officer indicating his case had been closed because he refused medical treatment.  The applicant states that he “never refused to any medical evaluation under military orders.”

The applicant concludes that he was honorably discharged simply because his case was “so intense and difficult” that his unit decided to take the easy way out. He notes that his case could have been solved years ago if “experienced and professional personnel would work with it.”

In support of his request he provides copies of his 1993 MEB, copies of his surgical operation narratives following his accident, a copy of his December 1998 VA rating, and copies of letters from various officials following his 1995 letter to President Clinton.

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

On 16 June 1992 the applicant, a member of the USAR on annual training, was injured as a result of a vehicle accident.  His parent USAR unit was located in Puerto Rico.  The accident “investigation” revealed that while performing duties as a “ground guide” he became “pinned between the vehicle and the loading dock” when the vehicle he was guiding “moved backwards as the engine was being turned off.”

The applicant was initially treated at St. Vincent’s Medical Center in Richmond, New York.  As a result of the applicant’s injuries he underwent four separate operations to repair damage in his abdomen area.  One of the four operations was to correct abscess and drainage problems and one, the last operation in December 1992, was “for elective closure of the stomas.”

The December 1992 medical summary noted that the applicant “denies use of tobacco, alcohol or drugs” and that in addition to the “abdominal injury he also had what appears to be a distal ulnar nerve injury on his left arm causing weakness in his ring and small fingers….”

In September 1993 the applicant underwent a MEB.  The applicant provided copies of documents associated with that MEB.  However, the MEB narrative summary, which was three pages long, contains only the third page.  The incomplete narrative summary of the applicant’s physical examination, conducted in May 1993 as part of the MEB process, indicates the applicant suffered from: 
1) status post crush, injury…with repair of inferior vena cava and superior mesenteric artery; 2) status post right hemicolectomy; 3) moderately severe left ulnar nerve sensory neuropathy; and 4) post-traumatic stress syndrome.  Contrary to the applicant’s contention, the MEB did not find him “fit for duty” but rather recommended the applicant be referred to a Physical Evaluation Board (PEB).  A permanent physical profile was issued.

On 28 October 1993 the applicant authored a statement indicating that he did “not agree with the Medical Board finding” and did “not feel that the board considered [his] medical record in full.”  He noted that he felt “several serious and important terms” were omitted from the MEB document and then mentioned some of those issues, including “not to include post traumatic stress syndrome…[and] many other ailments that prevents me from getting a job and much less a light desk job to sustain myself and my son.”  His self-authored statement does not indicate that he attached any “enclosures” to the statement.  He concluded his statement by noting that his “medical board results should be reconsidered.”

According to a Social Security Administration document, provided by the applicant, a “hearing was held in San Juan, Puerto Rico on 16 September 1994” and “upon evaluation of the evidence” the applicant was found to be disabled “within the meaning of the Social Security Act.”

The applicant’s records contain a 2 December 1994 memorandum from the 65th USAR Command at Fort Buchanan, Puerto Rico stating that “this office has been in contact with the Eisenhower Medical Center…coordinating all requirements for [the applicant’s] case.”  The memorandum requested a statement from the applicant’s commander indicating the applicant’s duty performance prior to and after the accident, a copy of his retirement points summary and either a copy of the applicant’s physical training (PT) card or a statement indicating why no card was available.  The requested documents were provided and on 15 December 1994 orders were issued permitting the applicant to travel to Fort Gordon, Georgia to attend a medical board.  The orders authorized 5 days of temporary duty (TDY) commencing on 3 January 1995.

There are no documents in the applicant’s file associated with his January 1995 TDY period at Fort Gordon and he did not provide any as part of his application to this Board.

In June 1995 the applicant obtained a “forensic psychiatric report” from a civilian physician who concluded the “claimant indeed has suffered a P.T.S.D. condition as a result of the truck accident and it’s medical complications and sequela.”  The applicant provided a copy of the report.

A 13 December 1995 letter to the applicant from the Army Reserve Command in Atlanta in response to his July 1995 letter to the President indicates that the applicant did leave the hospital on 12 January 1995 without completing his physical after “disagreeing with the requirement [to] undergo psychological testing.”  The letter also noted that the applicant was scheduled for an appointment with the VA in San Juan on 14 December 1995 to complete his physical and that once that appointment was completed his paperwork would be forwarded for completion of his MEB.  There is no evidence, and the applicant has not provided any, regarding the outcome of the 14 December 1995 VA evaluation or that he provided a copy of the evaluation to any military official in order to conclude his MEB process.

On 18 December 1996 the applicant voluntarily extended his USAR enlistment for 3 months under the provisions of Army Regulation 140-111, Table 3-1, Rule M, which provided for the extension of soldiers “not eligible for reenlistment” 

based on a disqualification that was “under adjudication pending a final determination….”  The period of extension was limited to 3 months.

On 12 June 1997 the applicant was informed by his USAR unit that they had tried on “several occasions to have the medical authorities at Eisenhower Medical Center [to] reconsider your case for another medical evaluation (MEB), however, because of your refusal to some medical evaluations, the MEB was canceled in Jan 95.”  The letter noted that without an MEB a PEB could not take place.  The applicant was honorably discharged from the USAR on 7 July 1997.

A December 1998 VA document, also provided by the applicant, indicates that as of February 1998 his VA rating had been increased to 90 percent (20 percent for left ulnar sensory neuropathy, 20 percent for lumbar paravertebral fibromyositis [originally rated at 10 percent], and 70 percent for generalized anxiety disorder with depressive features [originally rated at 50 percent].  That VA document only references VA examinations in August and September 1998.

Army Regulation 635-40 states that MEBs are convened to document a soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  A decision is made as to the soldier's medical qualification for retention.  An MEB can recommend an individual be returned to duty, returned to duty with limitation or if the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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 evidence confirms that the applicant underwent a MEB which, contrary to the applicant’s contention, recommended he be referred to a PEB.  The applicant nonconcurred with the MEB, not because of its recommendation that he be referred to a PEB but because the MEB did not include all of the ailments the applicant felt needed to be addressed by the disability process.

2.  Apparently as a result of the applicant’s nonconcurrence with the 1993 MEB he was scheduled for a follow-up MEB at Fort Gordon, Georgia in January 1995. While the applicant maintains that he left the hospital because his TDY orders had expired, and not because he refused additional treatment/evaluation, he provides no evidence that supports that contention.

3.  The Board notes, based on available evidence (extension of applicant’s USAR service and the letter from the USAR command indicating that following a December 1995 VA appointment the applicant’s MEB could be finalized) that the applicant’s unit attempted to support him during his disability processing.  However, the absence of the MEB’s complete narrative summary and evidence that the applicant followed through with his December 1995 VA physical examination, tend to support a conclusion that the applicant was not fully cooperating with the disability review process.

4.  The Board believes that following the applicant’s departure from the medical facility at Fort Gordon in January 1995 the original 1993 MEB should have been finalized and an PEB convened just as though the applicant had concurred with the MEB or had failed to follow-up with sufficient documentation to support his nonconcurrence.  In other words, the Board contends that an individual can not merely nonconcur with the MEB findings and recommendation and then not follow through with the appropriate appeal procedures.

5.  Notwithstanding the Board’s contention however, the lack of the complete MEB narrative summary and copies of the applicant’s service medical records (including the December 1995 VA physical examination which was intended to be utilized to determine the applicant’s fitness for duty) makes it impossible for the Board to determine if in fact the applicant should have been medically retired or separated from the service.  It is incumbent upon the applicant to provide sufficient evidence to convince the Board that an error or injustice has occurred, as the Board is not an investigative body.

6.  The fact that an individual may be receiving disability compensation from the VA is not a basis for the Army to determine that an individual was fit or unfit for 

military service or if unfit the percentage of his disability.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

7.  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 that requirement.

8.  In view of the foregoing, and in the absence of more definitive service medical evidence, there is no basis for granting the applicant's request at this time.

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

__amc___  ___alr__  ___jam__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039082	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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.	108.00	
2.		
3.		
4.		
5.		
6.