MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           12 September 2000                  
DOCKET NUMBER:   AR2000040578

	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	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		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: Reconsideration of his application to correct his records by granting him physical disability retirement.

APPLICANT STATES:  In effect, that he was suffering from schizophrenia while on active duty.  He contends that his use of marijuana was never verified, he was not evaluated or treated for drug dependency and that his use of the drug has been described as a self-medication for his depression.  He states that his Department of Veterans Affairs (VA) records show that his depression was really the onset of his current psychological problems.  He states that he is now rated permanently and totally disabled by the VA and that the Army should do likewise.  He contends that his rights were violated in the processing of his Flight Evaluation Board (FEB) and subsequent release from service.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 6 January 2000 (COPY ATTACHED).

The applicant submits four personal statements wherein he sets forth his contentions and arguments to include his contention that his rights were violated.  Within these lengthy statements the applicant states that his rights were violated by both the FEB, in removing him from flight status, and by his command in the manner it processed his discharge.  He contends that his use of illegal drugs was not verified and that the Army did not properly evaluate his medical condition in light of the reported treatment of depression, nor did they offer him any treatment for his drug usage.

He submits copies of denials for rehabilitation benefits from the Oregon Vocational Rehabilitation Division and the VA vocational rehabilitation program. 

Further, he submits copies of his 1990 to 1997 VA medical and administrative records.  The applicant’s VA records show that, prior to 1990, he was diagnosed as suffering from a non-service connected anxiety disorder and/or an adjustment disorder with depression.  In 1990 the applicant reopened his request for VA benefits and by a 1996 decision he was retroactively granted a 50% service connected disability evaluation for schizophrenia to the date of his reopened claim.  He was determined to be permanently and totally disabled for pension purposes at that time.  The earliest medical opinion that there was connection between his treatment for depression, while on active duty, and his current diagnosis of schizophrenia occurred in 1993.  

In support of his application, he also submits copies of 7 federal court cases that he avers support his contentions that the Army was required to afford him a medical/psychological evaluation to determine the nature and severity of his 

depression and drug dependency prior to relieving him from flight status and removal from the aviation program.  

He also submits excerpts from Butterworths Medical Dictionary and the Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health to describe his current diagnosis and its relationship to his complaints of depression on active duty.

These documents and arguments were not previously available to the Board and constitute new evidence or argument that requires Board review.

The applicant also submits copies of his official military personnel file (OMPF), including a copy of the FEB and copies of his service medical records (SMRs). 

During the FEB, testimony was given that shows that when his commander asked the applicant if he had been using marijuana that the applicant answered in the affirmative.  The applicant’s response was made in the presence of two other officers who corroborated the commander’s testimony.  Later in the board, several other personnel, both officers and enlisted, offered testimony as to their personal knowledge of the applicant’s use of marijuana on several diverse occasions.  Testimony was given by witnesses that the applicant was using marijuana while in flight status and while flying.

The transcript to the FEB includes testimony by a flight surgeon who, at the request of the FEB, performed an examination of the applicant.  While the actual copy of the exam is not of record the flight surgeon’s testimony of his findings is a part of the transcript of the FEB.  The flight surgeon testified that he did not find that the applicant was exhibiting any significant abnormalities.  He indicated that the applicant was slightly depressed and was being seen at mental health.  The flight surgeon’s testimony indicates that the applicant did not start having any problems with or treatment for depression until he was faced with the FEB.

The FEB found the applicant to be “professionally unqualified for further utilization as an Army aviator.”  It recommended that the applicant be indefinitely suspended from flying status and permanently removed from the Army Aviation Program.  The applicant exercised his right to appeal this decision.  The rationale for the appeal used the same or very similar arguments in regards to the violation of due process as are expressed in his current appeal.  The Headquarters, US Army Air Defense Center and Fort Bliss Staff Judge Advocate determined that there were no violations of the applicant’s rights.  The entire proceedings were reviewed by the Chief, Professional Development Division at the Department of Army, Military Personnel Center.  The Secretary of the Army approved the recommendation to terminate his flight status and remove him from the aviation program. 

In June 1978 the applicant was non-selected for promotion and in accordance with regulation this non-selection required that he be separated from the service.  In accordance with pertinent regulations, the applicant was afforded a separation medical examination.  The applicant reported that his health was “in good condition”.  The examination did not list any complaints or findings of any mental, emotional, psychological or psychiatric problems, concerns or diagnosis.  The evaluating physician found him medically qualified for separation with a physical profile of  1-1-1-1-1-1.  The applicant was discharged on 9 October 1978.

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 Board reviews and evaluates every case on its own merits, the evidence of record and the information provided by the applicant.  The court cases are not so similar to the applicant’s case as to be instructive.  

2.  The applicant’s contention that his use of illegal drugs was not verified is without merit.  The applicant not only admitted to the use of marijuana to his commanding officer, but his marijuana usage was the primary question at issue for his FEB.  This issue was extensively discussed with several personnel testifying to their personal knowledge of his use of marijuana while he was in flight status and while actually flying.  The proceedings and findings of the FEB were upheld during the appellate review.

3.  The contention that the FEB finding of drug usage would not have held up in a court of law is irrelevant.  The applicant did not have any legal charges preferred against him and the requirements for the administrative actions taken are far less stringent than that necessary to get a court conviction.  This does not mean that they are any less legal or binding.

4.  Neither the examination at the time of the FEB or at the time of the applicant’s release from service demonstrated any finding of any condition that rendered the applicant unfit for duty.

5.  There is no evidence that any of the applicant’s rights were violated during the FEB or during the administrative separation processing.  The applicant’s appeal of the FEB decision and the subsequent review shows that the applicant exercised all of his options and was afforded due process.  The applicant lost his flight status due to his own willful use of illegal drugs.  He was discharged properly for failure to meet retention standards due to his non-selection for promotion. 

6.  The VA medical opinions, rendered 10 to 15 years after the applicant’s release, are noted, but as these medical authorities were not present at the time of the applicant’s 1978 evaluations, their probative value is limited.  The VA decision that there is a connection between the applicant’s 1977-1978 complaints of and treatment for depression and the current diagnosis is the prerogative of that agency.  The VA doctor’s opinion does not show that applicant was suffering from a condition that rendered him unfit for duty at the time of the commission of the acts that lead to his release from service.

7.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

8.  The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

9.  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

___CMF_  __FE ___  __CJS___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040578	
SUFFIX		
RECON	 	
DATE BOARDED	20000912 	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.	108.02	
3.		
4.		
5.		
6.