dissenting.
I do not see this case "in a mirror dimly." I see a clear image of a necessity to apply appellate principles in the traditional manner. To conclude that the Board's decision was arbitrary and capricious, the evidence must be weighed.
Hargis, as the claimant, bore the burden of proving to the Board he was unfit for active duty in order to qualify for a disability pension. Ind.Code 386-8-7.5-13(a) (1988). He therefore appeals from the Board's negative judgment and in a review of a negative judgment a reviewing court must not weigh evidence or judge the credibility of witnesses. If the evidence is conflicting, it must consider only the evidence which supports the Board's decision. The Board's decision cannot be disturbed unless the evidence is undisputed and leads inescapably to a contrary result. Rensing v. Indiana St. Univ. Bd. of Trustees (1983), Ind., 444 N.E.2d 1170; Perez v. United States Steel Corp. (1981), Ind., 428 N.E.2d 212.
The Board is a fact-finding body of experts created by the legislature, IC 86-8-7.-5-5(a) and 18, and neither this court nor the trial court may reweigh the evidence and substitute its judgment for the Board's. Public Serv. Comm'n v. City of Indianapolis (1956), 285 Ind. 70, 131 N.E.2d 308; Department of Fin. Insts. v. Beneficial Fin. Co. (1981), Ind.App., 426 N.E.2d 711. On appeal we may only "review" the action of the Board, which is also exactly what the trial court should do. Beneficial Fin., supra.
The question of whether Hargis was disabled was a question of fact for the Board. The majority acknowledges that the evidence concerning his possible disability was conflicting. Therefore, as a matter of law, the Board must be affirmed. Rensing, supra; Perez, supra.
The Board's findings of fact and conclusions of law, although somewhat inartfully drafted, are nonetheless sufficient. The Board articulated four factors as the basis *826for its decision: Hargis' performance on duty; his attendance; his physical health; and the Board-appointed physician's determination that Hargis was not unfit for active duty. These factors are legitimate concerns that logically impact on the issue of disability. All of the Board's factual findings concerning these factors are supported by the record.
That the majority may conceive of hypothetical situations, in which theoretical facts might support other conclusions, is irrelevant to our (and the trial court's) review of the Board's decision. The Board was not confronted with the speculations postulated by the majority. At 825. Therefore, determining that the Board's decision is arbitrary and capricious, because those nonexistent facts might not support its decision, is unwarranted.
The majority seems to be unimpressed with the fact that Hargis was not certified as disabled by the Board-appointed physi-clan. The statute in effect at the time Hargis applied for a disability pension provided that:
"If an application is made by an active member of the police department because of physical or mental disability for temporary benefits as provided in subsection (a) or subsection (b), the benefit is not payable until a physician to be appointed by the local board examines the member, and certifies in writing that in his opinion the policeman is unfit, physically or mentally, for active duty in the police department. After the pension or benefit has been granted by the local board, the payment commences with the original date of the injury or illness causing the disability."
IC 86-8-7.5-18(c) (emphasis supplied).
This statute unmistakably establishes that the Board cammot grant a pension unless the claimant is certified as disabled. That the statute was amended in 1990 does not alter its applicability to Hargis. As the Board-appointed physician determined Har-gis was not disabled, the Board could not, as a matter of law, have granted Hargis a pension. Further, the physician based his noncertification on various reasonable factors, such as Hargis' physical health and capabilities, his attendance, and the physician's belief that Hargis' alcoholism was not disabling to him because of its voluntary nature. These are reasonable considerations.
Concerning the issue of whether alcoholism is a disabling disease, the United States Supreme Court in Treynor v. Turnage (1988), 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618, observed: "It is not our role to resolve this medical issue on which the authorities remain sharply divided." Id. at 1888 (emphasis supplied). Thus, I cannot conclude the Board's physician was being arbitrary or capricious or unreasonable when he used his beliefs concerning Har-gis' alcoholism as a factor in his decision not to certify Hargis as disabled. Every one who suffers from alcoholism is not disabled. It was within the Board's discretion to determine whether Hargis was.
The Board's decision, however, did not rest solely on the physician's determination when deciding whether Hargis was disabled. The other factors articulated by the Board were sufficient. The majority concludes that each factor, by itself, was not sufficient. That, however, is not the relative inquiry. The issue is whether the Board's decision as a whole was supported by the findings. The evidence must not be reweighed to supplant the Board's decision. Public Serv. Comm'n, supra; Beneficial Fin., supra.
Lastly, there is another issue that has not yet been considered. Because the majority orders the trial court to remand this case back to the Board for further findings of fact and conclusions of law, the possibility exists that Hargis' equal protection claims will likely arise again. In the interest of judicial economy we should address this ruling made by the trial court.
The trial court concluded the Board's decision was arbitrary and capricious because it violated Hargis' equal protection rights because of his claims that other officers were given pensions due to their alcoholism. This was error.
It is true that our constitution prohibits a law from being unequally or discriminato-*827rily applied. U.S. Const. amend. XIV; Ind. Const. art. I, § 28; see also Haas v. South Bend Community School Corp. (1972), 259 Ind. 515, 289 N.E.2d 495; Owens v. State ex rel. Van Natta (1978), 178 Ind.App. 406, 382 N.E.2d 1312, trams. denied. However, equal protection does not mandate similar treatment for individuals not similarly situated. In re Terry (1975), 262 Ind. 667, 329 N.E.2d 38, cert. denied 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 97.
Hargis presented no evidence that the police officers who received pension benefits for alcoholism were similarly situated. The Board concluded that Hargis was fit for active service and capable of performing his duties despite his off-duty consumption of alcohol. The sole piece of evidence offered by Hargis as to his equal protection claim was his unsupported conclusory statement that two fellow police officers received pension benefits for alcoholism. Record at 144-47. That fact alone is not: enough. The statute requires not only that an applicant suffer from a disability, but a further showing must be made that the disability diminishes the officer's capacity to serve the police department.
Hargis offered no evidence indicating whether or not the two officers he claimed received disability pensions for alcoholism were able to perform their duties as police officers, ie., were similarly situated. Therefore, we should conclude the trial court erred when it determined the Board's decision violated Hargis' equal protection rights. See Terry, supra.
In short, there was more than sufficient evidence to support the Board's findings and the findings support the Board's decision. Winder v. Review Bd. of Indiana (1988), Ind.App., 528 N.E.2d 854; Aaron v. Review Bd. of Indiana (1981), Ind.App., 416 N.E.2d 125, trans. denied; Gold Bond Bldg. Prod. Div. v. Review Bd. of Indiana (1976), 169 Ind.App. 478, 349 N.E.2d 258. Accord Wolfe v. Review Bd. of Indiana (1978), 176 Ind.App. 287, 375 N.E.2d 652.
The majority's understandable compassion for Hargis' plight, or its disagreement with the basis or reasoning of the Board's or its physician's conclusions, does not justify reversing the Board's decision.
The trial court should be reversed and the Board's decision affirmed in all respects.