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POWELL v. MARSH

March 31, 1983

CLIFFORD POWELL, Plaintiff,
v.
JOHN O. MARSH, JR., Secretary of the Army, Defendant



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY

 In this suit, plaintiff seeks review of a decision by the Army Board for Correction of Military Records ("ABCMR" or the "Board") that he was only 10% disabled at the time of his discharge. The Court now has before it Defendant's Motion to Dismiss, or, in the Alternative for Summary Judgment, plaintiff's opposition thereto and the entire record herein. For the reasons set forth herein, the Court will grant Defendant's Motion for Summary Judgment, thus refusing to disturb the ABCMR's decision denying plaintiff the record correction he sought.

 BACKGROUND

 Plaintiff enlisted in the Army in 1952 and served (with a short absence between enlistments) until 1966 when he was honorably discharged. In 1958, plaintiff volunteered to participate in a drug-related experiment, in the course of which, he received one dose of lysergic acid diethylamide (LSD) and then participated in a variety of simulated combat skills. *fn1" Upon his separation from the Army, plaintiff underwent a physical examination that found that he was fit for duty. No psychological disorder was noted at that time. Nor was plaintiff diagnosed or treated for any mental disorder between 1958 and 1976, although he underwent medical treatment for a variety of internal complaints during that time period. Additionally, plaintiff was continuously employed for the eight years following his discharge and did not seek any relief from the Army during this time.

 In December of 1975, plaintiff applied to the Veterans Administration ("VA") for disability benefits for the first time. He claimed he was suffering from the disabling effects of an unknown drug administered to him in 1958. *fn2" Plaintiff underwent medical and psychiatric examinations in connection with his application in early 1976. He was diagnosed as suffering from an "anxiety reaction." However, the VA determined that he was entitled to no disability benefits.

 On January 22, 1979, plaintiff, through counsel, sought reconsideration by the VA of its 1976 rating decision denying him disability benefits. Counsel also informed the VA that plaintiff had received LSD in the 1958 Army experiments. Plaintiff again underwent a medical examination, and was awarded a 10% disability rating for a non-service connected duodenal ulcer in July 18, 1980. *fn3"

 Prior to that decision, plaintiff applied to the ABCMR for the correction of his records. *fn4" Plaintiff's application was based on the claim that he was disabled due to the 1958 experiment. He sought to convert his honorable discharge into a medical disability retirement with a 100% disability rating retroactive to the date of his separation.

 In order to evaluate plaintiff's application, the ABCMR requested that the Office of the Surgeon General ("SG") determine whether plaintiff should have been retired because of disability, rather than honorably discharged. *fn5" The SG concluded that plaintiff did not have a medical condition at the time of his separation that would have warranted disability retirement.

 At the request of plaintiff's counsel and to further aid in evaluating plaintiff's application, the ABCMR received authorization to conduct a comprehensive mental and physical evaluation of plaintiff, at the Army's expense, in February of 1981. This evaluation, conducted at the Walter Reed Army Medical Center ("Walter Reed"), found that plaintiff suffered from chronic paranoid schizophrenia, the onset of which occurred during plaintiff's active duty. However, the evaluation found no causal connection between the LSD plaintiff received and the psychological condition from which he suffered. Instead, the conclusion was that the LSD incident was a "coincidental precipitant" to plaintiff's disorder.

 Plaintiff was next sent to Brooke Army Medical Center ("Brooke") for further testing. Brooke also found that plaintiff was suffering from a "paranoid delusional state." Based upon the findings of Walter Reed and Brooke, the ABCMR recommended that the SG reconsider its prior no-disability decision. The SG complied and issued a new opinion stating that if plaintiff's current condition had existed at the time of his discharge he would have been referred to a Medical Evaluation Board ("MEB"), which would have determined plaintiff to be medically unfit and would have referred plaintiff to a Physical Evaluation Board ("PEB").

 Plaintiff's application was then referred by the ABCMR to the United States Army Physical Disability Agency ("USAPDA"). The USAPDA determined that if plaintiff had been referred to a PEB at the time of his discharge he would have been given a 10% disability rating with entitlement to disability severance pay. This determination was based on review of plaintiff's record including all of the evaluations previously conducted and upon the fact that plaintiff was able to maintain employment for eight years after separation.

 In July of 1981, the ABCMR provided plaintiff with copies of all of the relevant opinions noted above and invited plaintiff's response. Plaintiff requested a hearing at this time, but the ABCMR denied that request. Plaintiff then returned to the VA and asked them to review their rating decision of July 1980 granting plaintiff 10% disability. After another examination, the VA affirmed its prior decision. However, when requested to reconsider by the Disabled American Veterans organization, the VA convened yet another review by a "Board of Three Psychiatrists." When the Board confirmed the prior diagnoses, the VA granted plaintiff a 50% disability rating for service-connected schizophrenia. Plaintiff's counsel then submitted the VA decision to the ABCMR.

 Ultimately, the ABCMR granted plaintiff's application in part, amending his records to state that he was honorably discharged with 10% disability entitling him to severance pay. His records were so amended and on May 17, 1982, plaintiff received $8,870.40 in ...


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