Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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No. 08-433C (Judge Bruggink) IN THE UNITED STATES COURT OF FEDERAL CLAIMS ROLAND S. ROLLINS, SR., Plaintiff,

THE UNITED STATES, Defendant.

DEFENDANT'S MOTION TO DISMISS GREGORY G. KATSAS Assistant Attorney General

JEANNE E. DAVIDSON Director
DONALD E. KINNER Assistant Director OF COUNSEL: MAJOR JENNIFER BOTTOMS United States Army Litigation Division Military Personnel Branch Suite 400 Arlington, VA 22203-1837 LAUREN S. MOORE Attorney Commercial Litigation Branch Civil Division Department of Justice ii00 L Street, N.W. 8t~ Floor Washington, D.C. 20530 Tele: (202) 616-0333 Fax: (202) 514-8640 Attorneys for Defendant

AUGUST 12, 2008

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TABLE OF CONTENTS DEFENDANT'S MOTION TO DISMISS ................. ISSUE PRESENTED ........................ STATEMENT OF THE CASE ................... I. Nature Of The Case .................. II. Statement Of Facts ................. 1 1 1 1 2 6

ARGUMENT ........................... I. The Complaint Must Be Dismissed For Lack Of Subject Matter Jurisdiction Because Mr. Rollins's Claims Are Barred By The Statute Of Limitations ............ A. Legal Standard ................. B. Mr. Rollins's Claims Are Barred By The Six-Year Statute Of Limitations .........

6 6 8 II 14 15

II. Statutory Tolling Does Not Apply ......... III. Equitable Tolling Does Not Apply ......... CONCLUSION .........................

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TABLE OF AUTHORITIES CASES: Alder Terrace, Inc. v. United States, 161 F.3d 1372 (Fed. Cir. 1998) PAGES:

Aubre v. United States, 40 Fed. CI. 371 (1998)
Bath Iron Works Corp. v. United States, 27 Fed. C1. 114 (1992), aff'd, 20 F.3d 1567 (Fed. Cir. 1994) Biester v. Midwest Health Servs., 77 F.3d 1264 (10th Cir. 1996) ..............

7

13
13

Bilbrey v. Douglas, 124 Fed. Appx. 971, 973 (6th Cir. 2005)
Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) ........... Finn v. United States, 123 U.S. 227 (1887) Friedman v. United States, 159 Ct. CI. I, 310 F.2d 381 (1962)

9, i0
14

Goewey v. United States, 612 F.2d 539 (Ct. Cl. 1979) ............... 12
Hamlet v. United States, 873 F.2d 1414 (Fed. Cir. 1989) Heim v. United States, 50 Fed. CI. 225 (2001) Holley v. United States, 124 F.3d 1462 (Fed. Cir. 1997) Hopland Band of Pomo Indians v. United States, 855 F.2d 1573 (Fed. Cir. 1988) ............. Hurick v. Lehman, 782 F.2d 984 (Fed. Cir. 1986) ..............
6

8

6

-III-

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Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) .................. J&E Salvage Co. v. United States, 37 Fed. C1. 256 (1997), aff'd, 152 F.3d 945 (Fed. Cir. 1998), cert.denied, 525 U.S. 827 (1998) ............ John R. Sand & Gravel Company v. United States, 128 S. Ct. 750 (2008) ..............

14

6

14, 15 14 9 8, 9 6 13 i0 6 8 6 7, 14 7 7

Kendall v. United States, 107 U.S. 123 (1883) ................... Maclean v. United States, 454 F.3d 1334 (Fed. Cir. 2006) ............. Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) ............ Moyer v. United States, 190 F.3d 1314 (Fed. Cir. 1999) ............ Price v. Lewis, 119 Fed. Appx. 725, 726 (6th Cir. 2005) ........ Real v. United States, 906 F.2d 1557 (Fed. Cir. 1990) ............ Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746 (Fed. Cir. 1988) .............. Sanders v. United States, 252 F.3d 1329 (Fed. Cir. 2001) ............ Scheuer v. Rhodes, 416 U.S. 232 (1974) ................... Soriano v. United States, 352 U.S. 270, 276 (1957) ...............

United States v. King, 395 U.S. i, 4 (1969) ................... United States v. Sherwood, 312 U.S. 584, 586 (1941) .................

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United States v. Testan, 424 U.S. 392 (1976) ................... Ware v. United States, 57 Fed. CI. 782 (2003) STATUTES: i0 U.S.C. §§ 1201, 1203 ................... 28 U.S.C. § 250i ....................

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I0 ii, 14

-V-

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ROLAND S. ROLLINS, SR., Plaintiff,
V.

) ) ) ) ) ) )

) No. 08-433C ) (Judge Bruggink)

THE UNITED STATES,

Defendant.

DEFENDANT'S MOTION TO DISMISS Pursuant to 12(b)(i) of the Rules of the Court of Federal

Claims (~RCFC"), the United States respectfully requests that the Court dismiss plaintiff's complaint for lack of subject-matter jurisdiction because Mr. Rollins's claims are barred by the statute of limitations and he cannot establish a basis to toll
the statute.

ISSUE PRESENTED Whether the Court lacks jurisdiction to entertain plaintiff's claims because they are barred by the statute of limitations. STATEMENT OF THE CASE
I. Nature Of The Case The plaintiff, Roland Rollins, is a former United States Army (~'Army") specialist who served in the military for approximately three years from 1979 to 1982. He was honorably discharged on July i, 1982 under the provisions of Army Regulation 635-200, paragraph 13-4b, for unsuitability-

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personality disorder. Mr. Rollins challenged his discharge and sought a disability separation in applications submitted to the Army Board for the Correction of Military Records ("ABCMR") in 1984 and again in 2006. Both applications were denied. He thereafter filed his complaint in this Court challenging his administrative discharge and requesting disability retirement, on June 16, 2008. Because his complaint was filed more than six years after his claims accrued, the Court does not possess jurisdiction to entertain this action. II. Statement Of Facts Plaintiff, Roland Rollins, enlisted in the Army on February 28, 1979. App. 13.~ Prior to his enlistment, he underwent a medical examination, on February I, 1979 for the purpose of enlistment. App. 12. Mr. Rollins completed basic training at Fort Dix, New Jersey. App. 13. He subsequently completed basic airborne training and was assigned to Fort Bragg, North Carolina as a medical aidman. Id. On May ii, 1979, Mr. Rollins was placed upon a temporary physical profile for a viral syndrome and was given physical assignment limitations. He was again placed upon a temporary physical profile on May 21, 1979, for a viral syndrome. Mr. Rollins was promoted to specialist four on August I, 1980. He

l "App. __" refers to the appendix attached to this motion. ~Compl. __~ refers to Mr. Rollins's complaint, filed with the Court on June 16, 2008.

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was discharged on October 6, 1981 for the purpose of immediate reenlistment. Id. Mr. Rollins reenlisted on October 7, 1981 for a period of five years. On February 2, 1982, he was treated for a complaint of recurrent right shoulder dislocation. On February II, 1982 Mr. Rollins received nonjudicial punishment under Article 15, Uniform Code of Military Justice ("UCMJ") for failing to go to his appointed place of duty. Id. Mr. Rollins underwent a psychiatric evaluation on April 26, 1982. The psychiatrist stated that he met retention standards under the provisions of Army Regulation ("AR") 40-501 and that he suffered from no psychiatric disorder or disease which necessitated medical treatment. The psychiatrist also stated that Mr. Rollins was mentally responsible, able to distinguish from right and wrong, and possessed the mental capacity to participate in board or court proceedings. Id. The evaluation concluded that Mr. Rollins suffered from a mixed personality disorder with borderline narcissistic, histrionic, and antisocial features. App. 13-14. The psychiatrist recommended that Mr. Rollins be administratively discharged under the provisions of AR 635-200, chapter 13, paragraph 4b. App. 14. On April 28, 1982, Mr. Rollins accepted nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful command. On May 20, 1982, he was treated for a complaint of

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recurrent right shoulder dislocation. On May 24, 1982, Mr. Rollins accepted nonjudicial punishment under Article 15, UCMJ for failing to go to his appointed place of duty. Id. On June 2, 1982, Mr. Rollins's unit commander notified him of pending separation action under AR 635-200, paragraph 13, for unsuitability-personality disorder. The unit commander stated that Mr. Rollins's duty performance was grossly substandard, and that he was constantly late for work and formations. He also stated that Mr. Rollins had no regard for authority and showed no desire to improve. Id. Also on June 2, 1982, Mr. Rollins underwent a mental status evaluation. He was determined to be mentally responsible, to possess the mental capacity to understand and participate in board proceedings, and to meet the retention requirements of chapter 3, AR 40-501. Id. Mr. Rollins underwent a separation medical examination on June 2, 1982, and was found to be qualified for administrative separation. App. 14-15. His separation was approved on June ii, 1982. App. 15. Mr. Rollins was honorably discharged on July I, 1982, under the provisions of AR 635-200, paragraph 13-4b for unsuitability-personality disorder. Id. Thereafter, on December 12, 1984, Mr. Rollins submitted an application for the correction of his military records to the ABCMR. App. 7. He sought a medical discharge, based upon his

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~acute dislocating shoulder, after damaging it on active duty." Id. He also requested that his reenlistment eligibility code and Army reserve obligation be changed, and that AR 635-200 be amended to permit his reenlistment. Id. On January 7, 1987 the ABCMR denied Mr. Rollins's application. App. I; 2-6. It stated that "[t]he medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation," and that "[Mr. Rollins] did not have any medically unfitting disability which would have required physical disability processing." App. 5. Thus, the ABCMR concluded, there was no basis for medical retirement upon Mr. Rollins's separation from the service. Id. The ABCMR also noted that it did not possess authority to change Army regulations. Id. More than nine years later, on September 15, 2006, Mr. Rollins sought reconsideration of the ABCMR's January 7, 1987 decision. See App. 8; Compl. ¶ 15. He again requested that his administrative discharge be changed to a medical discharge. On January 29, 2008 the ABCMR denied his request for reconsideration. App. 8; 9-19. The ABCMR stated that "the preponderance of evidence shows that [Mr. Rollins's] medical conditions did not render him medically unfit to perform his duties or justify physical disability processing." App. 18.

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ARGUMENT I. The Complaint Must Be Dismissed For Lack Of Subject Matter Jurisdiction Because Mr. Rollins's Claims Are Barred By The Statute Of Limitations A. Legal Standard In deciding a RCFC 12(b) (I) motion, a "determination of jurisdiction starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1464 (Fed. Cir. 1997) (citations omitted). If necessary to resolve the jurisdictional issues, the Court may also examine relevant evidence beyond the pleadings. Moyer v. United States, 190 F.3d 1314, 1318 (Fed. Cir. 1999). Where this Court's subject-matter jurisdiction is placed in issue, the non-moving party bears the burden of establishing jurisdiction. J&E Salvage Co. v. United States, 37 Fed. CI. 256, 260 (1997), aff'j, 152 F.3d 945 (Fed. Cir. 1998) (table), cert. denied, 525 U.S. 827 (1998). When deciding a motion to dismiss, the Court should view the allegations of the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988); Hamlet v. United States, 873 F.2d 1414, 1416 (Fed. Cir. 1989).

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It is well-settled that this Court is one of limited jurisdiction. Bath Iron Works Corp. v. United States, 27 Fed. CI. 114, 122 (1992), aff'd, 20 F.3d 1567 (Fed. Cir. 1994). Its authority to grant relief against the United States is limited by the extent to which the United States has waived sovereign immunity. United States v. Testan, 424 U.S. 392, 399 (1976). ~[T]he United States, as sovereign, 'is immune from suit save as it consents to be sued and the terms of its consent to be

sued in any court define that court's jurisdiction to entertain the suit.'" Id. at 399, quotinq United States v. Sherwood, 312 U.S. 584, 586 (1941). ~[I]n a Court of Claims context, that waiver of the traditional sovereign immunity 'cannot be implied but must be unequivocally expressed.'" Id. at 399, quotinq United States v. King, 395 U.S. I, 4 (1969); Soriano v. United States, 352 U.S. 270, 276 (1957). Title i0, United States Code, Section 2501 provides that ~every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." Thus, Mr. Rollins had six years from the accrual of his claims for wrongful discharge2 and military disability retirement pay to file his complaint in this Court. The plaintiff bears the

2 Mr. Rollins describes a wrongful discharge claim by the assertion in his complaint that the ABCMR ~arbitrarily and capriciously refused to re-open [his administrative] discharge." Compl. ¶ 197.

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burden of establishing, by a preponderance of the evidence, that his claims are not barred by the statute of limitations. See Sanders v. United States, 252 F.3d 1329, 1333 (Fed. Cir. 2001); Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1376-77 (Fed. Cir. 1998). B. Mr. Roliins's Claims Are Barred By The Six-Year Statute Of Limitations

A plaintiff's cause of action accrues, and the statute of limitations begins to run, when all events fixing the Government's liability have occurred and plaintiff knew or should have been aware of their existence. Martinez v. United States, 333 F.3d 1295, 1303-04 (Fed. Cir. 2003) (citing Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed. Cir.

1988).
Moreover, "it is well settled that the statute of limitations for Tucker Act claims is not tolled by the claimant's exercise of his right to seek permissive administrative review of his claim." Id. at 1312. Permissive administrative review, such as filing with the ABCMR, is independent of judicial review, and,
e~:, ~n=e ~nf ~nll ~h~ ~ a

limitation nf ............. period in a

judicial forum. Hurick v. Lehman, 782 F.2d 984, 987 (Fed. Cir. 1986); Heim v. United States, 50 Fed. CI. 225, 236 (2001). Thus, Mr. Rollins's resort to permissive administrative remedies by the submission of two applications to the ABCMR does not toll the limitations period.

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Both Mr. Rollins's wrongful discharge and disability retirement claims are barred by the six-year statute of limitations in this Court. A cause of action under the Tucker Act for money damages stemming from an alleged wrongful military discharge accrues for purposes of the statute of limitations upon discharge. Martinez, 333 F.3d at 1303; Maclean v. United States, 454 F.3d 1334, 1336 (Fed. Cir. 2006). In other words, it accrued when ~all events have occurred to fix the Government's alleged liability, entitling the claimant to demand payment and sue for his money." Martinez, 333 F.3d at 1303 (internal quotations omitted). Mr. Rollins was discharged from military service on July I, 1982. Thus, his wrongful discharge claim accrued upon that date, and expired six years later, on July i, 1988. Mr. Rollins waited 26 years to file his wrongful discharge claim with this Court. His failure to file suit within the six-year statute of limitations forever precludes him from seeking relief for losses stemming from the challenged discharge. Martinez, 333 F.3d at 1304. A cause of action for ~claims of entitlement to disability retirement pay generally does not accrue until the appropriate military board either finally denies such a claim or refuses to hear it." Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005) (citing Real v. United State..~, 906 F.2d 1557, 1560

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(Fed. Cir. 1990), and Friedman v. United States, 159 Ct. CI. i, 310 F.2d 381, 389 (1962)). "The decision by the first statutorily authorized board that hears or refuses to hear the claim invokes the statute of limitations." See Real, 906 F.2d at 1560. When the correction board is the first board to consider a disability claim, the correction board's decision triggers the accrual of the cause of action. Id.; Aubre v. United States, 40 Fed. CI. 371, 376 n.6 (1998). On December 12, 1984, Mr. Rollins submitted to the ABCMR his Application for Correction of Military Records. He requested that hisadministrative discharge be changed to a medical discharge. By virtue of requesting the ABCMR to change his administrative discharge to a medical discharge, he thereby asserted that his administrative discharge was wrongful. Further, by requesting a medica! discharge, he also suggested that he was due either a physical disability separation pay or a medical retirement. If the Secretary of the Army determines that a soldier is medically unfit, he may retire the soldier or medically separate him with severance pay. See I0 U.S.C. §§ 1201, 1203. In its decision dated January 7, 1987, the ABCMR considered and decided whether Mr. Rollins's administrative discharge was appropriate, and whether he was entitled to a medical discharge, i.e., either a physical disability separation or a disability

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retirement. After considerihg all of the available medical records, the ABCMR determined that ~[Mr. Rollins] did not have any medically unfitting disability which would have required physical disability processing." App. 5. Further, ~[s]ince [his] medical condition was not medically unfitting for retention at the time in accordance withal{ 40-501, there was no basis for medical retirement or separation." Id. (Emphasis added). Thus, Mr. Rollins's disability retirement claim accrued when the board issued its decision denying him his requested relief, on January 7, 1987, and expired six years later on January 7, 1993. Because Mr. Rollins filed his complaint seeking disability retirement more than 21 years after the ABCMR issued its decision, and well past the statute of limitations, his claim is barred by the statute of limitations, and should therefore be dismissed. II. Statutory Tolling Does Not Apply Section 2501 of title 28 of the United States Code tolls the six-year statute of limitations for "person[s] under legal disability at the time the claim accrues," and requires

such persons to file their claims ~within three years after the disability ceases." 28 U.S.C. § 2501. This tolling provision is difficult to invoke, as the law presumes plaintiffs to be sane and competent, and plaintiffs wishing to proceed under this provision bear the high burden of

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proving incapacity. See Goewey v. United States, 612 F.2d 539, 544 (Ct. CI. 1979). Indeed, "to rise to the level of a legal disability for purposes of tolling the statute of limitations, a Plaintiff's illness must be acute and extreme - it must

render the plaintiff incapable of caring for his property, of transacting business, of understanding the nature and effect of his acts, and of comprehending his legal rights and liabilities.'" Ware v. United States, 57 Fed. CI. 782, 788 (2003) (citing Goewey, 612 F.2d 539). Even if Mr. Rollins were able to invoke this provision, he would have to demonstrate that he was continually incapacitated between the time his claims accrued - 1982 for his wrongful discharge claim, and 1987 for his disability retirement claim and at most three years prior to the filing of the complaint in this case - June 16, 2005. The allegations at paragraphs 58, 62, 63, 65, 68, 69, 81, 85, 88, 103, 104, 117, 122, 126, 129, 133, 135, 138, 141, 142, 145, 146, 151, 157, 163, 171, 174, 180, 182, and 185 of his complaint, however, assert that, in the years following his separation from the military, Mr. Rollins actively pursued his disability claims before the Department of Veterans Affairs ("VA"). He also submitted his applications for correction of military records to the ABCMR in 1984, and again in 2006. His submissions to the ABCMR in 1984 and 2006 were taken to further the very same legal rights he presses in this case.

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Courts have declined the invitation to toll statutes of limitation upon the basis of incapacity where the plaintiff has demonstrated that he was able to file legal papers. See Biester v. Midwest Health Servs., 77 F.3d 1264, 1268 (i0th Cir. 1996) (finding equitable tolling inappropriate where the evidence demonstrated the plaintiff's ability to file his claim, in spite of his mental condition). See also Price v. Lewis, 119 Fed. Appx. 725, 726 (6th Cir. 2005) (~The exceptional circumstances that would justify equitable tolling on the basis of mental incapacity are not present when the party who seeks the tolling has been able to pursue his or her legal claims during the period of his or her alleged mental incapacity.") (internal quotation marks omitted); Bilbrey v. Douglas, 124 Fed. Appx. 971, 973 (6t~ Cir. 2005) (denying tolling to schizophrenic petitioner who was able to make court filings during period sought to be tolled). Mr. Rollins was fully capable of acting to pursue his claims in a timely fashion, and the Tucker Act's tolling provision is unavailable to him. Even if he could somehow demonstrate that he was sufficiently incapacitated to toll the statute, he demonstrated that he was capable of understanding and pursuing his legal rights when he submitted his requests and filings to the VA and the ABCMR. Under those circumstances, he should have filed his complaint in this Court no later than July i, 1988.

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III.

Equitable Tolling Does Not Apply The United States Supreme Court recently held that

equitable tolling is not applicable to claims filed pursuant to this Court's six-year statute of limitations, 28 U.S.C. § 2501. In John R. Sand & Gravel Company v. United States, 128 S. Ct. 750 (2008), the Supreme Court held that because prior Supreme Court case law interpreted the time limits set forth in the predecessor of 28 U.S.C. § 2501, as well as the language of that statute, to be jurisdictional, the six-year limitations period is absolute, and not subject to equitable tolling. Id. at 753-54 (citing Soriano v. United States, 352 U.S. 270, 273-74 (1957); Finn v. United States, 123 U.S. 227 (1887); Kendall v. United States, 107 U.S. 123, 125-26 (1883)). The Supreme Court distinguished its earlier holding in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), and explained that, although the language of the civil rights statute in Irwin was ~linguistically similar to the [C]ourt of [C]laims statute at issue here," the statutes are different ~in the key respect that the Court had not previously provided a definitive interpretation [of the civil rights statute at issue in Irwin.]" John R. Sand & Gravel, 128 S. Ct. at 755. The Court also explained that the ~rebuttable presumption" in favor Of equitable tolling adopted in the Irwin case meant "that the presumption is not conclusive[,]" and that a "definitive earlier interpretation of the statute, should offer a

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sufficient rebuttal." Id. at 756. For these reasons, equitable tolling is not applicable in this case. CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court grant its motion to dismiss the complaint. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Donald E. Kinner/Kirk T. Manhardt DONALD E. KINNER Assistant Director
s/Lauren S. Moore OF COUNSEL: MAJOR JENNIFER BOTTOMS United States Army Litigation Division Military Personnel Branch 901 N. Stuart Street Suite 400

LAUREN S. MOORE Attorney Commercial Litigation Branch Civil Division Department of Justice ii00 L Street, N.W. Attn: Classification Unit 8th Floor Tele: (202) 616-0333 Fax: (202) 514-8640 Attorneys for Defendant

AUGUST ii, 2008

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APPENDIX

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INDEX TO DEFENDRNT'S APPENDIX Document i. Letter to Mr. Rollins from Army Board for Correction of Military Records (~ABCMR"), dated March 3, 1987 ................................ 2. Decision of RBCMR dated January 7, 1987 ............ 3. Mr. Rollins's Application to the ABCMR, dated December 12, 1984 ............................ 4. Letter to Mr. Rollins's from RBCMR, dated January 29, 2008 .............................

Page

I 2-6
7

8 9-19

S. RBCMR Decision dated January 2S, 2008 ..............

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SFMR-RBR - ist End (7 Jan 87, Docket Number AC85-I0927) SUBJECT: ABCMR Memorandum of Consideration HQDA, ABCMR, Washington, D.C. 20310-1803 TO= Commander, US Army Reserve Personnel Center ATTN: DARP-PAS-AA, St. Louis, M0 63132-5200 l. It is requested that the individual concerned and counsel, if any, be notified that, after thoroughly examining and considering the application and available records, the Army Board for Correction of Military Records (ABCMR) has determined that there is insufficient evidence to indicate probable material error or injustice and that the application is~ therefore, denied. 2. It is further requested that the individual concerned and counsel, if any, as well as any members of Congress who have shown interest, be furnished a copy of the ABCMR's Memorandum of Consideration.
3o The notice to the individual concerned wil! be in the form prescribed in the memorandum, dated 8 June 1978, from the Deputy Assistant Secretary of the Army (RB&PS) to The Adjutant Genera!°

4. In addition~ request action be taken as indicated in the Note in the Determination portion of the Memorandum of Consideration.

Encls

Executive Secretary

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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
WASHINGTON, D.C. 20310-1B0:1

MEMORANDUM OF CONSIDERATION IN THE CASE OF:

LAND So

BOARD DATE: DOCKET NUMBER: INDEX NUMBER:

7 January 1987 AC85-I0927 108o04

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. The following members, a quorums were present°

Mro Dominic R, Ciccotelli Mr. James F. MacDonald Mr. Charles V. Szenas
Mr. David R. Kinneer Mro Donald L. Lewy

Chairperson Member Member

Acting Executive Secretary Examiner

The Boards established pursuant to authority contained in i0 UoSoCo 1552s convened at the call of the Chairman on the above date° Army Regulation 15-185, the regulation governing the operation of the Boards provides that applications and the available military records pertinent to the corrective action requested will be reviewed to: determine whether to authorize a formal hearing; recommend that the records be corrected without a formal hearing; ors 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

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ABCMR Memorandum of Consideration (cont)

AC85-I0927

APPLICANT REQUESTS: That his records be corrected to show ~at he was ~ischarged by reason of physical disability; based thereon, that his reenlistment eligibility (RE) code and United States Army Reserve obligation be changed, and that AR 635-200 be amended to permit his reenlistmento APPLICANT STATES: He was forced to accept an administrative discharge when he actually had an acute
dislocating shoulder° EVIDENCE OF RECORD: Incorporated herein by reference are military and medical records which show: The applicant served on active duty from 28 February 1979 to 1 July 1982o He was a 71BI0 Medical Specialist and his highest grade held was specialist four E-4o He was honorably discharged for a personality disorder under provisions of dhapter 13, AR 635-20~ on 1 July 1982o

The pertinent medical aspects of the case are summarized in the attached comments from the Office of The Surgeon General (OTSG), which was of the opinion that the applicant was medically, fit for reteDtion or appropriate separation at the time. (~i~-!~'~'~:~i The Enlistment Eligibility Activity, on 17 December 1985, advised that the applicant holds RE codes of RE-3 and RE-3~ reflecting the need for waivers of bin last discharge and a grade and service criterion since he was discharged in grade E-I with over six months of service.
DISCUSSION: Considering all the evidence, allegations~ and information presented by the applicant~ together with the evidence of record, applicable law and regulations~ and advisory opinions,' it is concluded:

i. In the absence of medical evidence to the contrary~ it is presumed that the available service records are correct as presently constituted.

2o No medical evidence has been presented by the applicant that demonstrates any injustice in the ~medical treatment received in service.

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ABCMR Memorandum of Consideration (cont)

AC85-I0927

3. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his~separation. He.has submitted no probative medica! evidence to the contrary.
4, The applicant did not have any medica~unfitting disability which would have required physical disability processing°

5. Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with AR 40-501~ there was no basis for medical retirement or separation. 6. The foregoing conclusion is supported by the opinion of the Office of The Surgeon General. 7. This Board has considered only the medical issue, as the Discharge Review Board (ADRB) has not adjudicated the~ reason and authority for separation.
8o Since the ADRB has not considered the propriety of the reason ~nd authority for his separation, and since he has not established that they are in error given the way his records are now constituted, there is no basis to change them at this time.

9~ Since he has been discharged~ he has no further Reserve obligation° i0o Changing regulations does not involve correction of military records and~ therefore, is not within the purview of this Board~ Furthermore, this Board is not the proponent of AR 635-200° 41 T~ view n~ the foregoing, there is no basis upon which to grant the applicant's request. DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable material error or injustice.
NOTE: The Reserve Personnel Center will be requested to forward a DD Form 293 appended to his DD Form 149 to the ADRB for appropriate action~

.3

11:36 FA~ 7036968126 Case 1:08-cv-00433-EGB

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ABCMR Memorandum of Consideration (cont)
BOARD VOTE:

AC85-10927

GRANT GRANT FORMAL HEARING ~DENY APPLICATION

~id Ro Kinneer g Executive

ry

Case 1:08-cv-00433-EGB 11:36 FAX 7036968126

Document 6 JALS-LT~f
'~i"" ;;. "

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¯

Page 29 of 42 ~008

APPLICATION FOR CORRECTION OF MILITARY OR NAVAL RECORD

UNDER THE PROVISIONS OF TITLE 10, U.S. CODE, SEC. 1552
DATA REOUlRED BY THE ~Rt~A~Y AC~ OF 1974 AUTHORITY: pRINCIPAL PURPOSE: ROUTINE USES: DISCLOSURE:

Form Approved. OMB NO. 0704.0003

'ridt, lo. u,s. Code 1552, E×ecutive Urder 939?, 22 Nov 43 (SSN) To apply for correction O~ a nd)itary or naval record. To doc~ela aa~, ~eviewedby boa¢fl menlbers to determine ruliefs~ught. To detcrnwne quali[ieatio~ Volun~ry. ~f in{or~afion is not furnished, applican~ may not ~ccurebenefi~sf~om the Board.

APPLICANT MUST SIGN IN THE SPACE PROVIDED IF THE R~CORD IN OUESTIONIS THAT OF A PERSON WHO IS DECEASEDOR INCOMPETENT. LEGAL PROOF OF DEATH0F~ INCOMPETENCY MUST ACCOMPANY APPLICATION. IF APPLICATION IS SIGNED BY SPOUSE. WIDOW OR WIDOWER. NEXT OF KIN OR LEGAL RFPRESENTATIVE. fNDICATE RELATIONSHIP OR STATUS IN APPRO P~lATE BOX. ~ SPOUSE ~WIDOW ~WIDOWER ~NEXTOF KIN ~LE"GAL NEP ~OTH~R{N/ I MAKE THE FOREGOING STATEMENTS, AS PART OF M~~TH FULL KNOWLEDGE OF T~E PENALTIES INVOLVED FO~ WILFIJLL~ MAKING A FALSE STATEMENT OR CLAIMer{ ~M~, '~?[h' I,~, SI't'. :l,~ ;,

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PRIVACY ACT STATEMENT, 26 SEP 75~ WHICH IS

Case 1:08-cv-00433-EGB

DEPARTMENT OF THE ARMY
1901 SOUTH BELL STREET 2ND FLOOR ARLINGTON, VA 222132-4508

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BOARD FOR CORRECTION OF MILITARY RECORDS

Janua~ 29,2008 AR20070003177, Rollins, Roland S.

Mr. Roland S. Rollins Sr. 1321 Lancaster Ave. B Wilmington DE 19805 Dear Mr. Rollins: Pursuant to your request for reconsideration of ABCMR Docket Number AC85-10927, the Army Board for Correction of Military Records (ABCMR) reconsidered your case on January 25, 2008. I regret to inform you that the Board denied your request for relief. A copy of the Board's Record of Proceedings wtlich explains the Board's reasons for denying your request is enclosed. This decision in your case is final. Paragraph 2-15b of Army Regulation 15-185 governs requests for reconsideration by the ABCMR. This regulation allows an applicant to request reconsideration of an earlier ABCMR decision only if the request is received within one year of the original decision and it has not already been reconsidered. Since your request has now been reconsidered, you are not eligible for further reconsideration of this same matter by this Board. However, you have the option to seek relief in a court of appropriate jurisdiction. Sincerely,

trano rd for Correction of Milftary Records Enclosure

EXHIBIT A PAGE ONE
Prinled on Recycled Paper

80 IS

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BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET 2ND FLOOR ARLINGTON, VA 22.202-4508

DEPARTMENT OF THE ARMY

EXHIBIT A

RECORD OF PROCEEDINGS IN THE CASE OF: ROLLINS, ROLAND S. BOARD DATE: 25 January 2008 DOCKET NUMBER: AR20070003177 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. Ms. Catherine C. Mitrano Ms. Beverly A. Young Director Analyst

The following members, a quorum, were present Mr. David Haasenritter Mr. James Hastie Mr. Edward Montgomery The Board considered the following evidence: Exhibit A -. Application for correction of military records. Exhibit B -- Military Personnel Records (including advisory opinion, if any). Chairperson Member Member

EXHIBIT A PAGE TWO

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ABCMR Record of Proceedings (cont)

AR20070003177

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, reconsideration of an earlier request that his discharge be changed to a medical discharge. 2. The applicant states that he was mistakenly administratively discharged and he could have been qualified for a chapter 13 discharge for service--connected disabilities. He states that he is now rated at 60 percent disabled by the Department of W~teran Affairs (DVA). He alleges that he was chronically disabled and should have been sent home due to disabilities and not for unsuitability. He also states that a complete physical was not propedy done and he was on a P-3 profile for his right shoulder, back, feet, and ankles. He states that these conditions were overlooked and are currently a part of CUE (clear and unmistakable error) pending before the DVA. He states that it took DVA many years to help him, through ne fault of his own, and it has 1seen out of Control for over 24 years. 3. The applicant provides a sworn affidavit; a supplemental letter, dated 15 December 2006; and numerous medical documents. COUNSEL'S REQUEST,.., STATEMENT AND EVIDENCE:
1. Counsel states, in effect, that the applicant submits a request for correction of his discharge in the interest of justice because he has been at least 60 percent disabled as a result of several service-connected conditions at the time of his release from active duty. Counsel states the applicant did not receive a medical board nor was his disability reviewed by a Physical Evaluation Board (PEB).

2. Counsel provides a brief in support of the applicant's application in which he describes the history of the applicant's medical condition. In August 1979, the applicant dislocated his shoulder playing football. He was later diagnosed as suffering from chondromalacia [anterior knee pain due to ir,;tation of the cartilage on the undersurface of the kneecap] of the left knee and bilateral flat feet. In April i980, the applicant stepped in a hole and injured his left knee and shin. He went on sick call and was given a diagnosis o~ contusion mid-tibia. On 7 April 1980, the applicant dropped a heavy loudspeaker on his right foot. The applicant was seen for a soft tissue injury to his foot at sick call and was treated. He was put on a tempora~ profile "no running" and "no jumping" for 7 days. 3. Counsel states the applicant was involved in a jeep accident on "12 May 1980 at Fort Bragg, North Carolina. The applicant re-injured his back and left foot on 26 August 1980 while moving heavy equipment. He went on sick call the next day and was diagnosed as suffering from contusions and a sprain. The applicant 2

EXHIBIT A PAGE THREE

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ABCMR Record of Proceedings (cont)

AR20070003177

was initially diagnosed as having viral syndrome in November 1980. On 16 March 1981, .carburetor cleaner splashed on the applicant's face and hands, causing acid burns. The applicant later developed an itchy rash on his face and body. He was seen by a dermatologist at Womack Army Hospital and was diagnosed as having acne vulgaris. 4. Counsel states the applicant submitted a compensation claim for service-connected recurrent right shoulder dislocation, skin disease, a prescription for eye lenses, and viral syndrome. He submitted a Statement in Support of Claim (SSC) in September 1982 requesting that "personality disorder" be added to the list of service-connected conditions. The applicant was referred to a psychologist in the Outpatient Mental Health Clinic and was scheduled for an MMP.I test (psychological test). The psychologist interpretedthe test results as "anxiety reaction in a schizoid personality." 5. Counsel further states that the Wilmington Veterans Affairs Regional Officer (VARO) made a rating decision which granted the applicant zero percent service connection for acne vulgaris and chronic right shoulder pain. The Rating Decision denied service connection for personality disorder, refractive error, and viral syndrome. The applicant filed a Notice of Disagreement (NOD) on 20 October 1982. VARO dismissed his claims in January 1983 for failure to report for a physical examination. By 1988, a civilian physician diagnosed the applicant as suffering from Type II Diabetes (Diabetes Mellitus). 6. In May 1994, the Wilmington VARO granted the applicant a 20 percent service connection disability rating for residuals from his chronic dislocated right shoulder and 10 percent for his skin rash. Counsel states that the applicant received an orthopedic compensation and pension examination at tile Wilmington Veterans Affairs Medical Center (VAMC). He was found to have traumatic arthritis of the right shoulder and chronic cervical strain with trapezius myalgia. Counsel also states the applicant filed a claim for service connection for personality dr..order. The Wilmington VARO denied his claim for a personality disorder because the applicant had not submitted any new material evidence. 7. In 2003, the Wilmington VARO increased the applicant's disability rating from 20 percent to 30 percent for residuals of the applicant's right shoulder dislocation. Counsel states the applicant was examined on 1 September 2003 at the Wilmington VARO. The physician diagnosed the applicant as having ache vutgaris; neurodermatitis; and a scar on his right anterior shoulder, noting that the applicant's shoulder scar was not affecting his range of motion. Qn 8 September 2003, the Wilmington VARQ found that the applicant had a 60 percent combined service-connected disability rating. His disability rating increased to 30 percent 3
EXHIBIT A PAGE ]~0UR

//

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ABCMR Record of Proceedings (cont)

AR20070003177

for ache vulgaris, 30 percent fdr residuals of right shoulder dislocation, and continued 10 percent disability rating for painful scar on his right shoulder.

8. Counsel states the applicant seeks review of his discharge for a personality disorder because he was suffering from major depression, a severe chronic mental disease or disorder, at the time of his discharge. Counsel states the applicant's discharge was not volunta.ry within the meaning of Title 28, United States Code, section 1491. Counsel states the applicant was entitled to a review of his mental condition by a medical board due to an extended history of symptoms of maior depression incurred on active duty. Counsel continues to stated that the applicant requests to be placed on disability retirement and that he be awarded appropriate relief under Title 10, United States Code, section 1201. 9. Counsel alleges that the applicant was discharged in violation of Army Regulations as outlined in the Military Personnel Manual. The applicant's service medical records do not reflec~ he had a pre-discharge medical ev~..:dation. Counsel states there is no evidence that the Army psychologist or Army physician opined the applicant had a personality disorder in April 1982. Counsel further alleges the applicant was not referred to an orthopedic surgeon or to a dermatologist for an opinion on his chronic shoulder separation and his chronic skin rash. 10. Counsel alleges that the Army's failure to seek a complete mental and physical assessment prior to the applicant's discharge resulted in his separation from the service without a full evaluation of the nature and extent of his disability. 11. Counsel provides the applicant's DVA medical records, his military service and medical records, and his civilian medical records. CONSIDERATION OF EVIDENCE:
in th# nrc~win, ,~ consideration u~ ~- - applicant's case by the Army Board for ~" u~e

1. Incorporated herein by reference are military records which were summarized

Correction of Military Records (ABCMR)in Docket Number AC85-10927 on 7 January 1987. 2. The applicaot .submitted new evidence (the medical records) thai will be considered by the Board. 3. The applicant underwent a medical examination on 1 February I979 for the purpose of enlistment. He completed a Standard Form 93 (Report of Medical History) in which he marked "'Yes" under item 11 indicating thai hehad or

EXHIBIT A PA~E

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ABCMR Record of Proceedings (cont)

AR20070003177

currently had swollen or painful joints; frequent or severe headache..; chronic or frequent colds; severe tooth or gum trouble; head injury; broken bones; bone, joint, or other deformity. 4. The applicant enlisted in the Regular Army on 28 February 1979. He completed basic combat training at Fort Dix, New Jersey and was reassigned to Fort Sam Houston, Texas for advanced individual training (AIT). At the completion of AIT, he was awarded military occupational specialty 91B (medical specialist). He later completed basic airborne training and was assigned to the 82d Airborne Division at Fort Bragg, North, Carolina as a medical aidman. 5. On 11 May 1979, the applicant was placed on a temporary physical profile for subsiding viral syndrome with residual weakness and was given a physical profile of T311111, to expire on 21 May 1979. His assignment limitations were listed as no running, marching or physical training (PT). The profile indicated the applicant would require extra rest and he should not perform any duties other than attending classes. 6. On 21 May 1979, the applicant was placed on a temporary physical profile for viral syndrome, to expire on 31 May 1979. His assignment limitations were listed as no running, marching, PT,.or standing in formation over 5 rninutes. 7. The applicant was promoted to specialist four on 1 August 1980. He was discharged on 6 October 1981 for the purpose of immediate reenlistment. 8. He reenlisted on 7 October 1981 for a period of five years. 9. On 2 February 1982, the applicant was treated for a complaint of recurrent right shoulder dislocation. 10. On 11 February 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty. 11. The applicant underwent a psychiatric evaluation on 26 April 1982. The psychiatrist stated the applicant met retention standards under the provisions of Army Regulation 40-501 and there was no psychiatric disease or disorder which warranted disposition through medical channels. Also, the psychiatrist stated the applicant was mentally responsible, was able to distinguish right fronq wrong and adhere to the right, and had the mental capacity to participate in board or court proceedings. The clinical interview found the applicant suffered from a mixed personality disorder with borderline, narcissistic, histrionic, and antisocial 5
EX~IIBIT A PAGE SIX

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ABCMR Record of Proceedings (cont)

AR20070003177

features. The psychiatrist recommended administrative discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 4b. !2. On 28 April 1 982, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful command. 13. On 3 May lg82, the applicant's parachutist pay was terminated after his parachutist special qualification identifier was withdrawn. 14. Qn 20 May 1982, the applicant was treated for a complaint of recurrent right shoulder dislocation. 15. Qn 24 May 1982, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty. 16. On 2 June 1982, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 13 for unsuitability-personality disorder. He was advised of his rights. 17. The applicant acknowledged receipt of the notification, consulted with legal counsel, requested consideration of his case by a board of officers, and submitted statements in his own behalf. He stated that he preferred a board of officers to hear his case and a board of medical officers to review his recent and past medical documents. He also stated that he would like to receive an honorable dischai-ge if an administrative discharge was in effect. He further stated that his previous honorable discharge should be recognized for his past performance as a member of his unit for over three years.
!8. On 2 June 1982, the unit commander recommended that the applicant be separated from the service due to unsuitability-personality disorder under the provisions of chapter 13, Army Regulation 635-200. The unit commander statgd the applicant's dut) performance was grossly substandard. He also stated the applicant was constantly late for work and formations, had no regard for authority, and showed absolutely no desire to improve. The unit commander requested a waiver of the rehabilitative transfer requirement.

19. On 2 June 1982, the applicant underwent a mental status evaluation. It was determined that the applicant was mentally responsible, had th'e mental capacity to understand and participate in board proceedings, and met the retention requirements of chapter 3, Army Regulation 40-501. 20. The applicant underwent a separation medical examination on 2 June 1982. His Report of Medical Examination indicates he had chronic right shoulder 6

EXHIBIT A PAGE SEVEB

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ABCMR Record of Proceedings (cont)

AR20070003177

dislocation and had been on profile for about three years. The examining physician recommended the applicant have follow-up at an or::hopedic Clinic. The applicant was qualified for separation. He was given a PULHES 131121 but was found to be qualified for the chapter 13 discharge. 21. Qn 11 June 1982, the separation authority approved the separation, waived rehabilitation requirements, and directed issuance of an Honorable Discharge Certificate. 22. On 21 June 1982, the applicant was placed on a temporary physical profile for recurring dislocation of his right shoulder and was given a physica! profi!e of IT31111, to expire on 21 July 1982. His assignment limitations were listed as no crawling, no hand to hand combat or contact sports, no handling of heavy materials, no overhead work, no push-ups or pull-ups, no climbing of rope or ladder. ?z3. The applicant was honorably discharged on 1 July 1982 under the provisions of Army Regulation 635-200, paragraph 13-4b for unsuitability-personality disorder. He completed 8 months and 25 days of active military service during the period under review. He completed 3 years, 4 months, and 4 days total active military service. ' ..... 24. The applicant submitted a sworn affidavit, dated 14 December 2006, in support of his claim. He gives a description of his medical conditions to include his shoulder dislocation, flat feet, knee injury, back injury, pro-dromal diabetes symptoms, facial acid burns, and acne vulgaris. 25. Chapter 13 of Army Regulation 635-200 applied to separation for unsuitability. At that time, paragraph 13-4b provided for the separation of individuals for personality disorder. This regulation stated that as determined by medical author.ity (i.e., the diagnosis will have been established by a physician trained in psychiatry and psychiatric diagnosis) and described in the Diagnostic and Statistical Manual (DSM II) of Mental Disorders, 2rid Edition, Committee on Nomenclature and Statistics, American Psychiatric Association, Washington, DC 1968) this condition-is a deeply ingrained, maladaptive pattern of behavior of long duration which interferes with the membeCs ability to perform duty. Exception: Combat exhaustion and other acute situation maladjustments. Frorn an Army medical viewpoint, every member who is correctly diagnosed as having a personality disorder is capable of controlling his/her actions, arid no member may be discharged pursuant to this paragraph unless he/she meets Army medical standards for retention.

7
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ABCMR Record of Proceedings (cont)

AR20070003177

26. Effective 1 April 1982, Army Regulation 635-200 was cha~qged to eliminate the requirement to offer an administrative discharge board for Soldiers with less than 6 years service for separation under the unsuitability provision. 27. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty. 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 eacil 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. 28. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and per.sonnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-tower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "I" under all factors indicates that an individual is conside~-ed to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which.requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his.or he~" functional capacity. the version in effect at the time, stated that per:sonality disorders could render an individual administratively unfit rather than unfit because of ph!/sica disability. Interference with performance of effective duty in association with this condition would be dealt with through appropriate administrative channels. 30. Army Regulation 40-501, paragraph 3-12(b) of the version in effect at the time, did not list shoulder dislocation or recurrent shoulder dislocaticns as a cause for referral to a Medical Evaluation Board.

EXHIBIT A PAGE NINE ~A~:E0 80 Ig uec

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ABCMR Record of Proceedings (cont)

AR20070003177

31. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was discharged under the provisions of paragraph 13-4b of Army Regulation 635-200 for unsuitability due to personality disorder. 2. The applicant consulted with military counsel, requested a hearing by a board of officers (which at that time was no longer required for Soldiers with less ~han 6 years of service), and submitted statements in his own behalf. 3. The evidence of record shows the applicant was evaluated by a psychiatrist and was diagnosed as having a mixed personality disorder with borderline, narcissistic, histrionic, and antisocial features. However, a personality disorder is not a condition that is a cause for referral to a physical disability board. Interference with performance of effective duty in association with this condition ¯ will be dealt with through appropriate administrative channels, T~he applicant was administratively separated for this reason. 4. It is acknowledged that the applicant's medical problems began around 1979. He was placed on temporary physical profile for subsiding vira] syndrome with residual weakness. There is no evidence that he was subsequently placed on a profile, temporary or permanent, for this condition. Hewas also placed on a temporary physical profile for recurring dislocation of his right shoulder in June 1982. 5. The applicant's Report of Medical Examination indicates he had chronic right shoulder dislocation and had been on profile for about three years. Other medical evidence indicates that he had been treated for recurrent right shoulder dislocation. However, there is no evidence to show that he had been on profile for this condition ibr other than the one [em~oraFy profile noted above. 6. At the time, recurrent shoulder dislocations was not a condition listed as a cause for referral to a Medical Evaluation Board. 7. It is also noted that the applicant was promoted to specialisi four on 1 August 1980, he was qualified to reenlist on 7 October 1981, and his parachutist pay was not terminated until May 1982. The two former actions were taken when the applicant was allegedly on a profile for chronic right shoulder dislocation. The latter action was not taken until after he had been assigned to an airborne unit for 9
EXHIBIT A PAGE TEN

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ABCMR Record of Proceeding's (cont)

AR20070003177

almost 3 years, indicating that he felt ~ufficiently capable of performing his duties by accepting the parachutist pay. All three of those actions are indicators that neither his shoulder condition nor any other condition rendered him unfit to perform his military duties. 8. The applicant was found qualified for separation under the provisions of Army Regulation 635-200, chapter 13. The examining physician recommended the applicant follow-up at an orthopedic clinic regarding his right shoulder dislocations; however, that would have been a proper recomrnendation for a Soldier whose shoulder condition did not render him unfit for his military duties yet required follow-on treatment by other agencies, such as the DVA. 9. Although the applicant contends that he should have been medically discharged, the preponderance of evidence shows that his medical conditions did not render him medically unfit to perform his duties or justify physical disability processing. 10. It is noted th.at the applicant applied to the DVA for service connected compensation and was awarded a combined disability rating of 60 percent for residuals of right shoulder dislocation, for ache vulgaris, and painful scar.on his right shoulder. 11. However, the rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army. The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition does 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, a}though not considered medically unfitting for military service at that time of processing for separation, discharge or retirement, may be sufficient [o qualify the )ndividual -for DVA benellts based on an evaluation by that agency. ¯ BOARD VOTE:

GRANT FULL RELIEF
GRANT PARTIAL RELIEF GRANT FORMAL HEARING DENY APPLICATION

10
EXHIBIT A PAGE ELEVEN

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ABCMR Record of Proceedings (cont) BOARD DETERMINATION/RECOMMENDATION:

AR20070003177

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 to amend the decision of the ABCMR set forth in Docket Number AC85-10927, dated 7 January 1987.

CHAIRPERSON

EXHIBIT A PAGE TWELVE

t-a

/d~

ass:so eots ue[-

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CERTIFICATE OF ELECTRONIC FILING I hereby certify that on AUGUST 12, 2008, a copy of "DEFENDANT'S MOTION TO DISMISS" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system, and that the parties may access this filing through the Court's system. !s! Lauren S. Moore