Hello
Is there anything to gleam from these excerpts from my Federal case to change my honorable to a retroactive military discharge.
I finally came to understand "aggravation" . Has the government already conceded my conditions were aggravated in service, post my attempted Navy to Army Transfer?
Case 1:19-cv-00594-EDK Document 27 Filed 05/29/20 Page 24 of 35
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Further, in all three of the cases cited by Mr. Hassay, there
was a particular, documented in-service incident which led to the service member receiving
medical treatment. Ferrell, 23 Cl. Ct. at 564 (active duty mobility exercise aggravated lower back
injury); Stuart I, 108 Fed. Cl. at 461 (service member injured when riding in vehicle hit by IED in
combat area); Reaves, 128 Fed. Cl. at 197 (service member failed routine test for required body
weight and was placed in ongoing, documented weight control program). Here, no such incident
took place and Mr. Hassay was not receiving ongoing medical treatment from the Navy.
Furthermore, the Navy medical records in the administrative record show no physical inability to
perform his duties and reflect that any psychological issues were a result of personal problems, not
naval service. AR99 & AR226-227. Thus, Mr. Hassay is incorrect in his assertion that the board
drew a negative inference from a lack of evidence. Instead, the board determined that substantial
evidence supported the determination Mr. Hassay was fit for duty.
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In addition, the declaration’s stated purpose is to provide evidentiary support for a
proposition that currently has none—that Mr. Hassay sought and received permission from the
Navy to attempt to transfer to the Army. Mot. to Supp. At 2-3. This does not represent a “gap” in
the record. Rather, it represents a gap in the assertions made in Mr. Hassay’s Response and Cross-
MJAR. Mr. Hassay has asserted that the Army and Navy collectively failed to follow their
regulations because the Army never transmitted the results of Mr. Hassay’s 1998 MEPCOM to the
Navy for consideration, and that the Navy never acted upon those results.6 Resp. at 28-30.
However, this argument breaks down if neither the Army nor the Navy was aware that Mr. Hassay
was seeking to transfer. Other than the offered declaration, the only other evidence Mr. Hassay
can point to are two letters from Inspectors General which Mr. Hassay claims “validated” that he
attempted to transfer. Closer inspection of these letters reveals that they do not provide the support
Mr. Hassay contends.
The Office of the Inspector General for the Army’s Headquarters, U.S. Army Recruiting
Command stated in its letter of August 1, 2016, that the “MEPCOM [Inspector General (] IG [)]
validated that you attempted to transfer from the US Navy to the US Army . . . .” AR148.
However, the letter provides no further explanation of what “validated” means. Mr. Hassay
contends that “validated” in this context means that the MEPCOM IG confirmed that Mr. Hassay
did in fact attempt to transfer from the Navy to the Army. However, review of the MEPCOM IG’s
letter belies this assertion.
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Case 1:19-cv-00594-EDK Document 88 Filed 01/27/25 Page 1 of 16
KAPLAN, Chief Judge.
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B. Merits
The plaintiff in this military disability retirement case, Aaron Hassay, served in the United States Navy Reserves (“USNR”) for eight years, from 1994 to 2002. He claims he is entitled to a military disability retirement based on post-traumatic stress disorder (“PTSD”) and other psychiatric illnesses that either developed during, or were aggravated by, his military service. According to Mr. Hassay, these conditions rendered him “unfit to perform the duties of his office, grade, rank or rating” during his service. See Hassay v. United States, 150 Fed. Cl. 467 (2020) [hereinafter Hassay I]; see also 10 U.S.C. § 1204.
As noted above, in the decision currently under review the Board found despite the absence of corroborating evidence that Mr. Hassay was a victim of sexual and physical assault as well as verbal abuse while serving on the U.S.S. Sides. It also found that as a result of these experiences, Mr. Hassay developed PTSD and aggravated his pre-existing mental health conditions, including depression and bipolar disorder.
Also in 2016, Mr. Hassay petitioned the BCNR to correct his naval records to reflect a disability retirement. AR 262. The Board rejected Mr. Hassay’s request. AR 101–02. It found that Mr. Hassay had a mental health disorder as early as 1998, but concluded there was insufficient evidence to establish that his condition “was incurred or aggravated in connection with [his] military service.” AR 101. It also found that there was insufficient evidence to support Mr. Hassay’s assertions that he was assaulted by his Command Master Chief or that he was a victim of military sexual trauma. Id. Finally, the Board concluded that the evidence did not establish that Mr. Hassay was unfit for continued service at the time of his discharge. AR 102.
On December 6, 2016, Mr. Hassay asked the Board to reconsider its decision based on an intervening decision by the Board of Veterans Appeals that found—contrary to the BCNR—that Mr. Hassay’s psychiatric disorders were service-connected. AR 103–04. The BCNR denied reconsideration in a February 2018 decision, but now acknowledged that Mr. Hassay had “service[-]connected disability conditions.” AR Vol. I at 6–7, ECF No. 12-1. However, it remained of the view that these conditions had not “created a sufficient occupational impairment to warrant [Mr. Hassay’s] referral to a medical board or the Physical Evaluation Board [“PEB”]” and that the record showed that he was fit for duty at the time of his discharge. Id. The Board concurred with the opinion of its Senior Medical Advisor and relied on Mr. Hassay’s performance evaluations, which the Board found showed that he was “fit for duty at the time of [his] discharge despite the evidence that [his] symptoms may have worsened in the years after his discharge.” Hassay I, 150 Fed. Cl. at 476 (alterations in original) (quoting AR 7). ------------------------
