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MOZUR v. ORR

January 15, 1985

Robert S. MOZUR
v.
Verne ORR, Secretary of the Air Force



The opinion of the court was delivered by: POLLAK

 Plaintiff joined the Army Air Corps (currently the Air Force) in January, 1943. The Report of Physical Examination and Induction dated December 22, 1942 notes no serious medical problems and states that plaintiff was "physically and mentally qualified for general military service." Military Personnel Records at 5.

 On June 28, 1943, plaintiff was discharged from duty. The Report of Physical Examination of Enlisted Man Prior to Discharge or Retirement states that plaintiff suffered from "Psychoneurosis, mixed type" incurred under "unknown" circumstances. The certification of the immediate commanding officer on the discharge form states that "in my opinion the disease was not incurred in the line of duty in the military service of the United States." Air Force Correction Board Proceedings at 24. The same certification is provided by the physician who performed the discharge physical examination.

 The discharge was the result of a recommendation by the Army physician who was treating plaintiff in May, 1943. That physician concluded that plaintiff suffered from "psychoneurosis, mixed type, severe, cause undetermined, manifested by extreme psychosomatic introspection, insomnia, and episodes of somnambulism all without organic basis." Air Force Correction Board Proceedings at 26. The treating physician found that this condition was not incurred in the line of duty. Id.

 Prior to his discharge, plaintiff had been hospitalized continuously from approximately April 30, 1943. The physician who took plaintiff's medical history at the time of a May 15, 1943 examination noted that plaintiff complained of "pain in knees, elbows, feet, since age of 8. Tires easily. Has nightmares and headaches." Id. at 28. That same physician recites the history of plaintiff's illness as follows:

 
This soldier states that he has been ailing since the age of 8 with pains in the knees, and elbows, headaches, nervousness and easy fatigability.) [ sic ] He states that he has had growing pains in his knees and that his entire family has rheumatic heart disease.
 
Is unable to stay on feet longer than 15 minutes because of pains in knees and shortness of breath.
 
Had a "nervous breakdown" at age of 17 and could not work for several months/Never could keep a job. Used to stay out naked on the street and was brought in by the milkman. Gets hysterical.

 Id. at 29.

 A May 23 physician's report relates a similar medical history and describes plaintiff's psychiatric status as follows:

 
Soldier is quite garrulous. He can go on indefinitely recounting long and varied symptomatology. Despite the disabling nature of his symptoms as he relates them, he does so with evident relish and with a smile. He is an emotionally inadequate individual, who never apparently adjusted well to life since his so called "nervous breakdown" at the age of 17. He shows extreme psychosomatic introspection. There is no evidence of psychosis or mental deficiency. He is a pronounced Psychoneurotic. He may have some parathyroid deficiency; this however is not clearly evident. Certainly his psychoneurotic manifestations cannot be explained by a parathyroid deficiency. They (are explained on the basis of an inadequate personality reaction and have been continuously present for the last 4 or 5 years.) It is doubtful that any useful service can be obtained from this soldier and in view of his short period of service, separation under WD Cir. #395 is recommended.

 Id. at 33.

 In 1944 plaintiff applied for and received disability benefits for his "nervous condition." Id. at 38. Those benefits were severed in 1957 "since a determination has been made that your nervous condition was not incurred in or aggravated by your military service in World War II." Id. at 39.

 Plaintiff, represented by the Jewish War Veterans of the United States, appealed this decision to the Board of Veterans Appeals. The Board denied the appeal following a hearing at which plaintiff and his mother appeared as witnesses. That decision, issued July 26, 1957, stated that the Board had considered not only the military records in the case but also the testimony presented at the hearing, affidavits of plaintiff's friends and letters from various physicians who had treated plaintiff both before and after his period of service.

 Plaintiff then applied to the Air Force Board for Correction of Military Records ("AFBCMR") for a revision of his military records which would recite that his mental problems were service-connected. That pro se petition was denied in January, 1961. The decision of the AFBCMR states that the military records and the facts presented by plaintiff failed "to establish a showing of probable error or injustice in your case." Proceedings of Air Force Board for Correction of Military Records at 1.

 On January 25, 1983, the AFBCMR denied the renewed application. The decision of the AFBCMR stated, in pertinent part:

 
2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.
 
3. Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice. Applicant's contentions are duly noted; however, we agree with the opinion and recommendation of the Office of the Surgeon and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of substantial evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

 The recommendation of the Office of the Surgeon relied upon by the AFBCMR states:

 
1. Applicant's entire case file has been reviewed and is forwarded with the following findings, conclusions and recommendations.
 
2. The applicant was discharged from the Army Air Corps in June 1943 after a short period in the service. At this most late and untimely date he applies requesting "amend record to delete all reference to any mental disorder or nervous breakdown existing prior to induction in the Armed Forces" because he has not been rated by the VA.
 
3. The records are correct. Service medical records clearly document applicant's mental condition existed prior to induction in the armed services and was not service-incurred.
 
4. VA records, including extensive review of his case by the Board of Veteran Appeals, clearly indicate applicant's mental condition is not service-connected.
 
5. The Surgeon General's Consultant Staff is of the opinion that no change in the records is warranted, the application is untimely, ...

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