Nolen v. Rumsfeld, 75-1398
| Decision Date | 21 July 1976 |
| Docket Number | No. 75-1398,75-1398 |
| Citation | 535 F.2d 888 |
| Parties | Lenard Wallace NOLEN, Sr., Plaintiff-Appellant, v. Donald H. RUMSFELD, Secretary of Defense, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lenard Wallace Nolen, Sr., pro se.
Ronald T. Knight, U. S. Atty., C. Nathan Davis, Edgar W. Ennis, Jr., Asst. U. S. Attys., Macon, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before COLEMAN, RONEY and TJOFLAT, Circuit Judges.
Plaintiff seeks correction of military medical records in an effort to prove "service-connected" hypertension and effectuate a claim for disability under the Veterans Administration Act. We previously reversed a district court's grant of summary judgment denying plaintiff relief, expressing no opinion on the merits but mandating that a full hearing be accorded plaintiff by the district court. Nolen v. Schlesinger, 492 F.2d 787 (5th Cir. 1974). From a denial of relief on remand, Nolen contends pro se that: (1) the district court did not accord him a de novo hearing on remand thus failing to follow the mandate of this Court and abusing its discretion; (2) action taken by the Army Board for Correction of Military Records (ABCMR) was arbitrary, capricious and not supported by substantial evidence; and (3) he was denied fair play and due process by the ABCMR. We affirm.
In his initial efforts, plaintiff sought service connected disability for cardiovascular disease by application to the Veterans Administration. He urged that prior to and upon enlistment in the Army in 1942 he was suffering from hypertension, and that this condition was aggravated by active duty. At the time of his induction, Nolen's Record of Physical Examination and Induction showed no disqualifying physical defects. Plaintiff was discharged in 1946. His report of physical examination at the time of discharging disclosed no disabilities.
Plaintiff requested and received a hearing before the Board of Veterans Appeals which found, inter alia, that the pre-existing hypertension was not noted on the induction physical examination; that the medical records failed to establish any increase in severity during plaintiff's period of service; and that the record of plaintiff's discharge examination failed to reflect any reference to the illness. Plaintiff's appeal was accordingly denied.
Thereafter, plaintiff applied for correction of records to the Army Board for Correction of Military Records. 10 U.S.C.A. § 1552. The Board determined that there was insufficient evidence of error or injustice to warrant a formal hearing on the matter and the application was denied. Plaintiff thereupon filed the instant civil action in the district court. To prevail, plaintiff must show that the decision of the ABCMR was ". . . arbitrary, capricious, unsupported by evidence, or contrary to the laws and regulations . . . ." Hutter v. United States, 345 F.2d 828, 829, 170 Ct.Cl. 517 (1965).
Following production of a mass of documents including plaintiff's medical records and numerous affidavits executed by plaintiff and others, defendant moved for summary judgment. An order was entered by the district court on July 24, 1973, granting the defendant's motion. The decision was reversed by this Court. Nolen v. Schlesinger, supra. We held only that the plaintiff was entitled to a full hearing to determine the merits of his claim.
In the interim between the order of the district court and the decision of the appellate court, the plaintiff was afforded another hearing before the Board of Veterans Appeal. The Board found that the previous decision was correct, that the evidence adduced subsequent thereto was cumulative in nature and that the plaintiff had failed to establish aggravation of hypertension during his active service. The plaintiff applied to the ABCMR once again and received a letter from the Board's Executive Director denying his application. The substance of that correspondence was that plaintiff had failed to adduce any new evidence that would justify further consideration of plaintiff's application.
Following remand by this Court, the...
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