Forgive Typos.
If you see any problems here let me know.
The court specifically said the board was to consider if continued service in the reserve was a “decided medical risk”
My case is how I was handled and the problems, in a Navy Reserve Contract, at 18, something I can not find any precedence, something odd, something very problematic, assigned to a ship. Then the government you will see I did not deserve a discharge physical why? Because I was in a reserve contract. You can not make this up. The BVA a Federal Judge instantly saw a "unique file". I did not even get a DD 214 from the Navy. The Navy sees no problem with this it seems, which screwed me at the VA.
I put the government statements below so you can see what I am pulling from.
Continued Service and Decided Medical Risk. 4 years in a row of medical complaints, then the kid shuts up, numb trapped, as no one cares, and no care rendered.
1997-1998-1999-2000 medical complaints diagnosis with no medical care treatment. It seems either the Navy Army DOD MEPS had files that were not shared and there was no doctor communication year by year. Then they just discharged me honorably as if everything was ok. They say I could even re-enlist. I was not given a discharge physical. The government says I did not deserve one because I had a reserve enlistment. Then they state I was a patient in a civilian hospital 3 months after discharge
———————
BVA TRANSCRIPT
Marjorie Auer, Judge
“Well, Mr. Hassay has a unique file. I have to
say, he was a Reservist, but he did do time while he was a Reservist on a ship, but after
thoroughly -- I couldn't find a DD214 but he has a certificate of some sort it looks like of service”
——————
Therefore, the Court REMANDS the case to the BCNR for reconsideration of Mr.
Hassay’s claims: 1) that the Navy should have referred him to an MEB in August of 1999 when
Dr. Killian examined him or in 2000 when he requested mental health counseling; and 2) that he
was unable to reasonably perform the duties of his office, grade, rank, or rating as early as 1998
or as late as the time of his discharge. In conducting its review, the Board shall, consistent with
this opinion:
1. decide whether and when Mr. Hassay’s continuation on Active Reserve status
presented “a decided medical risk” to his health or the welfare of other members,
1998 & 2002 Manuals § 3302(b)(1);
———————————
On 21 September 1997, while assigned to the U.S.S. SIDES, you executed an Annual Certificate
of Physical Condition...You wrote on this form that, “sometimes, if I worry, or something I feel stress in my
heart and down to my left hand and I don’t like it,” but did not provide any further explanation.
In August 1998, you unsuccessfully attempted to enlist in the Army. The San Diego Military
Entrance Processing Station (MEPS) conducted a physical evaluation in conjunction with this
application, which found you to be medically disqualified for accession into the Army due to
“Spine, Other Musculoskeletal/Psych.”4
Further, there is no indication as to what “Military Unit: NO LONGER ELIGIBLE” means. Mr. Hassay speculates that it referred to his disqualification from the Army but provides no support for that allegation. Pl. MJAR at 26. Nevertheless, Mr. Hassay alleges that Drs. Killian and Smith violated the Disability Manual by not asking question about a notation on a report that did not exist at the time they examined Mr. Hassay. Pl. Reply at 24. But Mr. Hassay’s fails to grapple with the temporal impossibility of his position.
Regardless of whether the board believed that the MEPCOM examination found psychological
issues, the fact remains that the MEPCOM report was in the administrative record, the board
considered it, and determined that Mr. Hassay was not entitled to a correction of his naval records.
AR223. This portion of Mr. Hassay’s argument offers nothing more to substantiate reversible error
or to contradict the substantial evidence supporting the board’s decision.
Next, Mr. Hassay continues to allege that the Navy should have referred Mr. Hassay for
disability evaluation following the MEPCOM medical examination in 1998. However, Mr.
Hassay’s argument does nothing to address a key fact—the Navy was never informed that Mr.
Hassay failed accession to the Army. Instead, Mr. Hassay argues that the Navy should have been
informed of the MEPCOM medical examination. However, Mr. Hassay provides no evidentiary
support, other than his own post hoc declaration, which would indicate he ever informed the Navy
that he was seeking to transfer to the Army. Resp. at 29. In essence, Mr. Hassay is arguing that,
because the MEPCOM examination took place, it must have been a result of an authorized transfer
attempt, and the lack of documentation in the record to support this position is the fault of the
Government. Id. However, the argument is untethered from the administrative record and,
ultimately, irrelevant.
Given that the MEPCOM examination is contained in the administrative record, the
Government does not dispute that it took place. However, there is no evidence in the
administrative record showing that in 1998: 1) Mr. Hassay requested a transfer from the Navy,
2) that the Army knew that Mr. Hassay was attempting to transfer rather than enlist in the first
instance, AR255, or 3) that the results of Mr. Hassay’s MEPCOM medical examination where
made known to the Navy. As a practical matter, there is nothing stopping an individual from
entering an Army recruiting facility and seeking to enlist. Thus, Mr. Hassay argues that a failure of
communication between the services occurred based on nothing more than his own assertions.
However, the dispute over whether Mr. Hassay actually sought to transfer from the Navy to the
Army is ultimately irrelevant.
Given that the MEPCOM examination is contained in the administrative record, the
Government does not dispute that it took place. However, there is no evidence in the
administrative record showing that in 1998: 1) Mr. Hassay requested a transfer from the Navy,
2) that the Army knew that Mr. Hassay was attempting to transfer rather than enlist in the first
instance, AR255, or 3) that the results of Mr. Hassay’s MEPCOM medical examination where
made known to the Navy. As a practical matter, there is nothing stopping an individual from
entering an Army recruiting facility and seeking to enlist. Thus, Mr. Hassay argues that a failure of
communication between the services occurred based on nothing more than his own assertions.
However, the dispute over whether Mr. Hassay actually sought to transfer from the Navy to the
Army is ultimately irrelevant.
Mr. Hassay’s allegation that, had the Navy been informed of the results of the MEPCOM
examination, it should have referred him to the disability evaluation system is entirely speculative,
as we established in our motion. Resp. at 30, MJAR at 13-14. SECNAVISNT 1850.4E § 3202(d)
specifically states:
Inability To Meet Initial Enlistment/Appointment Standards. Once enlisted or
commissioned, the fact that a member may fall below initial entry or
appointment standards, specified in the reference (f) (MANMED), does not
require that the case be referred for disability evaluation.
Thus, the fact that MEPCOM found Mr. Hassay unfit for accession in the Army would not have
automatically led to his referral to the disability evaluation system through the Navy. See Jordan
v. U.S., 205 Cl. Ct. 65, 113 (1974) (“[M]embers may be found qualified for retention on active
duty even though they have diseases, injuries, or infirmities which would disqualify them for
original appointment or enlistment . . . .”); McEaddy v. U.S., 152 Ct. Cl. 311, 330 (1961) (same).
This is further bolstered by the fact that the MEPCOM examination only found a physical
disability, not a psychological one, and there is substantial evidence in the record indicating that
Mr. Hassay was physically able to perform his duties in the Navy. AR34-37, AR99, AR226-227.
Therefore, even if the results of the MEPCOM examination had been made know to the Navy, the
Navy would not have been compelled to refer Mr. Hassay for disability evaluation and this
argument cannot form the legal basis to disturb the board’s decision to deny Mr. Hassay’s request
to correct his naval records.
Mr. Hassay next contends that he should have been referred to the disability evaluation
system after his 1999 and 2000 medical examinations. Resp. at 30-31. However, these arguments
are unconvincing because a review of the medical examination reports reveal that they do not
support Mr. Hassay’s argument. The August 1999 medical examination notes the presence of
depression or bipolar disorder, but no physical issues. AR99. Significantly, Dr. Killian noted that
Mr. Hassay stated that the his psychological issues were related to a recent breakup with his
girlfriend. Id. There is no mention of any stressors related to his military service and no indication
that he was not able to perform his duties at that time. Id. Similarly, the June 2000 medical
examination notes no physical issues while acknowledging psychological issues. AR226-227.
However, the June 2000 medical examination specifically states in regard to the noted
psychological issues that Mr. Hassay was “currently dealing with stressful female relationships –
does not appear depressed, however.” Id. Again, this examination is devoid of any indication that
Mr. Hassay was suffering from any psychological issues caused by his Naval service and contains
no indication that he was unable to perform his duties. Further, the examination notes that Mr.
Hassay had previously received psychological treatment from the Navy. AR227 (“Navy
counselors, 1 year ago”).
The key point confirmed by these examinations, and ignored in Mr. Hassay’s response, is
that in both August 1999 and June 2000, Navy medical examiners found no indication that Mr.
Hassay was unable to perform his duties. AR99, AR226-227. The examinations noted certain
psychological issues, but the examinations also made clear that, according to Mr. Hassay, the
stressors causing those psychological issues were related to his personal life, not his naval service.
Nothing in these examinations supports Mr. Hassay’s contention that the Navy was required to
refer him to the disability evaluation system based on either one of these examinations.
Further, the scope of this Court’s review of the board’s determination does not include
second-guessing the determinations made by Navy doctors two decades ago. The provision cited
by Mr. Hassay in his response to support his argument does not extend as far as he alleges. Resp.
at 30. SECNAVINST 1850.4E §1005 indicates referral to the disability evaluation system may
occur when continued fitness for naval service is “questionable.” Resp. at 30. Whether or not a
service member’s fitness is “questionable” is a determination to be made by the medical
professionals who examined Mr. Hassay. The August 1999 and June 2000 medical examinations
do not demonstrate that Mr. Hassay’s fitness for duty was “questionable.” Nothing in those reports
indicates that this determination was incorrect or that the board committed clear error by failing to
make such a finding.
Finally, Mr. Hassay’s discussion of a medical examination upon discharge contains no new
argument not already discussed. Resp. at 31-32. While Mr. Hassay described entitlement to a
discharge medical examination as “debatable,” our MJAR established that it is not a debatable
point. MJAR at 14-15. Specifically, SECNAVINST 1850.4E § 3202(g) makes plain that Mr.
Hassay was not entitled to a medical examination upon discharge. Nothing in Mr. Hassay’s
response detracts from that.
II. Post-Discharge Medical Developments
According to the Board of Veterans Appeals, in August of 2002, just three months after
his discharge, Mr. Hassay was “hospitalized” for depressive disorder. AR 160 (Board of
Veterans Appeals’ decision stating that “an August 2002 private treatment record shows that the
appellant was hospitalized for depressive disorder”).1 Further, according to Mr. Hassay, in the
years following his discharge from the Navy Reserves, he experienced severe mental illness,
poverty, and chronic homelessness. AR 31, 153, 160, 262.
8 In your complaint to the COFC, you asserted that the Navy “nexplicably” did not provide you with “a required
separation physical examination.” However, there was no such examination required, because you were not being
separated from active duty.
Certainly, your experience onboard the U.S.S. SIDES was an injustice and your resulting
mental health conditions are a tragedy….There simply is no injustice in the fact that you did not receive a medical
retirement as a result of your conditions, because your conditions never warranted referral to the
DES much less rendered you unfit for continued service. The Board also found no equitable
basis for relief in your case. In determining what constitutes equity, the Board is obligated to
consider not only what you should receive, but also what other similarly situated service
members are entitled to receive. The Board determined that no other similarly situated service
member would have been referred to the DES at the time even with the facts as they are now
known, nor would anyone be retroactively medically retired based upon similar facts.
Accordingly, the Board determined that there is no basis for relief based on equity. The Board
continues to regret the experience that you endured during your service onboard the U.S.S.
SIDES and the long-term effect that it has had upon your mental health. Finally, the Board members
recognized that you continued to serve the Navy honorably despite the trauma that you endured
onboard the U.S.S. SIDES. That, however, is the point. Medical retirements are intended only
for those service member unable to continue providing such honorable and effective service due
to a disqualifying medical condition. The Board regrettably found no basis to grant you the
medical retirement that you were never qualified to receive.
--------
I won't tell you what one year of missing support will do. I will tell you a story of missing 20 years of help, of even a 10% rating ,will do
Is this the precedence they want to set.
If you see any problems here let me know.
The court specifically said the board was to consider if continued service in the reserve was a “decided medical risk”
My case is how I was handled and the problems, in a Navy Reserve Contract, at 18, something I can not find any precedence, something odd, something very problematic, assigned to a ship. Then the government you will see I did not deserve a discharge physical why? Because I was in a reserve contract. You can not make this up. The BVA a Federal Judge instantly saw a "unique file". I did not even get a DD 214 from the Navy. The Navy sees no problem with this it seems, which screwed me at the VA.
I put the government statements below so you can see what I am pulling from.
Continued Service and Decided Medical Risk. 4 years in a row of medical complaints, then the kid shuts up, numb trapped, as no one cares, and no care rendered.
1997-1998-1999-2000 medical complaints diagnosis with no medical care treatment. It seems either the Navy Army DOD MEPS had files that were not shared and there was no doctor communication year by year. Then they just discharged me honorably as if everything was ok. They say I could even re-enlist. I was not given a discharge physical. The government says I did not deserve one because I had a reserve enlistment. Then they state I was a patient in a civilian hospital 3 months after discharge
———————
BVA TRANSCRIPT
Marjorie Auer, Judge
“Well, Mr. Hassay has a unique file. I have to
say, he was a Reservist, but he did do time while he was a Reservist on a ship, but after
thoroughly -- I couldn't find a DD214 but he has a certificate of some sort it looks like of service”
——————
Therefore, the Court REMANDS the case to the BCNR for reconsideration of Mr.
Hassay’s claims: 1) that the Navy should have referred him to an MEB in August of 1999 when
Dr. Killian examined him or in 2000 when he requested mental health counseling; and 2) that he
was unable to reasonably perform the duties of his office, grade, rank, or rating as early as 1998
or as late as the time of his discharge. In conducting its review, the Board shall, consistent with
this opinion:
1. decide whether and when Mr. Hassay’s continuation on Active Reserve status
presented “a decided medical risk” to his health or the welfare of other members,
1998 & 2002 Manuals § 3302(b)(1);
———————————
On 21 September 1997, while assigned to the U.S.S. SIDES, you executed an Annual Certificate
of Physical Condition...You wrote on this form that, “sometimes, if I worry, or something I feel stress in my
heart and down to my left hand and I don’t like it,” but did not provide any further explanation.
In August 1998, you unsuccessfully attempted to enlist in the Army. The San Diego Military
Entrance Processing Station (MEPS) conducted a physical evaluation in conjunction with this
application, which found you to be medically disqualified for accession into the Army due to
“Spine, Other Musculoskeletal/Psych.”4
Further, there is no indication as to what “Military Unit: NO LONGER ELIGIBLE” means. Mr. Hassay speculates that it referred to his disqualification from the Army but provides no support for that allegation. Pl. MJAR at 26. Nevertheless, Mr. Hassay alleges that Drs. Killian and Smith violated the Disability Manual by not asking question about a notation on a report that did not exist at the time they examined Mr. Hassay. Pl. Reply at 24. But Mr. Hassay’s fails to grapple with the temporal impossibility of his position.
Regardless of whether the board believed that the MEPCOM examination found psychological
issues, the fact remains that the MEPCOM report was in the administrative record, the board
considered it, and determined that Mr. Hassay was not entitled to a correction of his naval records.
AR223. This portion of Mr. Hassay’s argument offers nothing more to substantiate reversible error
or to contradict the substantial evidence supporting the board’s decision.
Next, Mr. Hassay continues to allege that the Navy should have referred Mr. Hassay for
disability evaluation following the MEPCOM medical examination in 1998. However, Mr.
Hassay’s argument does nothing to address a key fact—the Navy was never informed that Mr.
Hassay failed accession to the Army. Instead, Mr. Hassay argues that the Navy should have been
informed of the MEPCOM medical examination. However, Mr. Hassay provides no evidentiary
support, other than his own post hoc declaration, which would indicate he ever informed the Navy
that he was seeking to transfer to the Army. Resp. at 29. In essence, Mr. Hassay is arguing that,
because the MEPCOM examination took place, it must have been a result of an authorized transfer
attempt, and the lack of documentation in the record to support this position is the fault of the
Government. Id. However, the argument is untethered from the administrative record and,
ultimately, irrelevant.
Given that the MEPCOM examination is contained in the administrative record, the
Government does not dispute that it took place. However, there is no evidence in the
administrative record showing that in 1998: 1) Mr. Hassay requested a transfer from the Navy,
2) that the Army knew that Mr. Hassay was attempting to transfer rather than enlist in the first
instance, AR255, or 3) that the results of Mr. Hassay’s MEPCOM medical examination where
made known to the Navy. As a practical matter, there is nothing stopping an individual from
entering an Army recruiting facility and seeking to enlist. Thus, Mr. Hassay argues that a failure of
communication between the services occurred based on nothing more than his own assertions.
However, the dispute over whether Mr. Hassay actually sought to transfer from the Navy to the
Army is ultimately irrelevant.
Given that the MEPCOM examination is contained in the administrative record, the
Government does not dispute that it took place. However, there is no evidence in the
administrative record showing that in 1998: 1) Mr. Hassay requested a transfer from the Navy,
2) that the Army knew that Mr. Hassay was attempting to transfer rather than enlist in the first
instance, AR255, or 3) that the results of Mr. Hassay’s MEPCOM medical examination where
made known to the Navy. As a practical matter, there is nothing stopping an individual from
entering an Army recruiting facility and seeking to enlist. Thus, Mr. Hassay argues that a failure of
communication between the services occurred based on nothing more than his own assertions.
However, the dispute over whether Mr. Hassay actually sought to transfer from the Navy to the
Army is ultimately irrelevant.
Mr. Hassay’s allegation that, had the Navy been informed of the results of the MEPCOM
examination, it should have referred him to the disability evaluation system is entirely speculative,
as we established in our motion. Resp. at 30, MJAR at 13-14. SECNAVISNT 1850.4E § 3202(d)
specifically states:
Inability To Meet Initial Enlistment/Appointment Standards. Once enlisted or
commissioned, the fact that a member may fall below initial entry or
appointment standards, specified in the reference (f) (MANMED), does not
require that the case be referred for disability evaluation.
Thus, the fact that MEPCOM found Mr. Hassay unfit for accession in the Army would not have
automatically led to his referral to the disability evaluation system through the Navy. See Jordan
v. U.S., 205 Cl. Ct. 65, 113 (1974) (“[M]embers may be found qualified for retention on active
duty even though they have diseases, injuries, or infirmities which would disqualify them for
original appointment or enlistment . . . .”); McEaddy v. U.S., 152 Ct. Cl. 311, 330 (1961) (same).
This is further bolstered by the fact that the MEPCOM examination only found a physical
disability, not a psychological one, and there is substantial evidence in the record indicating that
Mr. Hassay was physically able to perform his duties in the Navy. AR34-37, AR99, AR226-227.
Therefore, even if the results of the MEPCOM examination had been made know to the Navy, the
Navy would not have been compelled to refer Mr. Hassay for disability evaluation and this
argument cannot form the legal basis to disturb the board’s decision to deny Mr. Hassay’s request
to correct his naval records.
Mr. Hassay next contends that he should have been referred to the disability evaluation
system after his 1999 and 2000 medical examinations. Resp. at 30-31. However, these arguments
are unconvincing because a review of the medical examination reports reveal that they do not
support Mr. Hassay’s argument. The August 1999 medical examination notes the presence of
depression or bipolar disorder, but no physical issues. AR99. Significantly, Dr. Killian noted that
Mr. Hassay stated that the his psychological issues were related to a recent breakup with his
girlfriend. Id. There is no mention of any stressors related to his military service and no indication
that he was not able to perform his duties at that time. Id. Similarly, the June 2000 medical
examination notes no physical issues while acknowledging psychological issues. AR226-227.
However, the June 2000 medical examination specifically states in regard to the noted
psychological issues that Mr. Hassay was “currently dealing with stressful female relationships –
does not appear depressed, however.” Id. Again, this examination is devoid of any indication that
Mr. Hassay was suffering from any psychological issues caused by his Naval service and contains
no indication that he was unable to perform his duties. Further, the examination notes that Mr.
Hassay had previously received psychological treatment from the Navy. AR227 (“Navy
counselors, 1 year ago”).
The key point confirmed by these examinations, and ignored in Mr. Hassay’s response, is
that in both August 1999 and June 2000, Navy medical examiners found no indication that Mr.
Hassay was unable to perform his duties. AR99, AR226-227. The examinations noted certain
psychological issues, but the examinations also made clear that, according to Mr. Hassay, the
stressors causing those psychological issues were related to his personal life, not his naval service.
Nothing in these examinations supports Mr. Hassay’s contention that the Navy was required to
refer him to the disability evaluation system based on either one of these examinations.
Further, the scope of this Court’s review of the board’s determination does not include
second-guessing the determinations made by Navy doctors two decades ago. The provision cited
by Mr. Hassay in his response to support his argument does not extend as far as he alleges. Resp.
at 30. SECNAVINST 1850.4E §1005 indicates referral to the disability evaluation system may
occur when continued fitness for naval service is “questionable.” Resp. at 30. Whether or not a
service member’s fitness is “questionable” is a determination to be made by the medical
professionals who examined Mr. Hassay. The August 1999 and June 2000 medical examinations
do not demonstrate that Mr. Hassay’s fitness for duty was “questionable.” Nothing in those reports
indicates that this determination was incorrect or that the board committed clear error by failing to
make such a finding.
Finally, Mr. Hassay’s discussion of a medical examination upon discharge contains no new
argument not already discussed. Resp. at 31-32. While Mr. Hassay described entitlement to a
discharge medical examination as “debatable,” our MJAR established that it is not a debatable
point. MJAR at 14-15. Specifically, SECNAVINST 1850.4E § 3202(g) makes plain that Mr.
Hassay was not entitled to a medical examination upon discharge. Nothing in Mr. Hassay’s
response detracts from that.
II. Post-Discharge Medical Developments
According to the Board of Veterans Appeals, in August of 2002, just three months after
his discharge, Mr. Hassay was “hospitalized” for depressive disorder. AR 160 (Board of
Veterans Appeals’ decision stating that “an August 2002 private treatment record shows that the
appellant was hospitalized for depressive disorder”).1 Further, according to Mr. Hassay, in the
years following his discharge from the Navy Reserves, he experienced severe mental illness,
poverty, and chronic homelessness. AR 31, 153, 160, 262.
8 In your complaint to the COFC, you asserted that the Navy “nexplicably” did not provide you with “a required
separation physical examination.” However, there was no such examination required, because you were not being
separated from active duty.
Certainly, your experience onboard the U.S.S. SIDES was an injustice and your resulting
mental health conditions are a tragedy….There simply is no injustice in the fact that you did not receive a medical
retirement as a result of your conditions, because your conditions never warranted referral to the
DES much less rendered you unfit for continued service. The Board also found no equitable
basis for relief in your case. In determining what constitutes equity, the Board is obligated to
consider not only what you should receive, but also what other similarly situated service
members are entitled to receive. The Board determined that no other similarly situated service
member would have been referred to the DES at the time even with the facts as they are now
known, nor would anyone be retroactively medically retired based upon similar facts.
Accordingly, the Board determined that there is no basis for relief based on equity. The Board
continues to regret the experience that you endured during your service onboard the U.S.S.
SIDES and the long-term effect that it has had upon your mental health. Finally, the Board members
recognized that you continued to serve the Navy honorably despite the trauma that you endured
onboard the U.S.S. SIDES. That, however, is the point. Medical retirements are intended only
for those service member unable to continue providing such honorable and effective service due
to a disqualifying medical condition. The Board regrettably found no basis to grant you the
medical retirement that you were never qualified to receive.
--------
I won't tell you what one year of missing support will do. I will tell you a story of missing 20 years of help, of even a 10% rating ,will do
Is this the precedence they want to set.