APPLICANT REQUESTS:  That the honorable discharge he received at the expiration of his term of service (ETS) be corrected to a medical retirement.

APPLICANT STATES:  He should have been medically retired for facial scars, migraine headaches, and problems with his neck, back and right knee.

In support of his request he submits an extract from his military health records pertaining to the emergency surgery he was provided when a practice grenade from a 40 millimeter grenade launcher struck him in the face at close range.  He also submits a letter from a civilian physician in which the physician stated that the applicant had reported having neck pain and severe migraine headaches since his injury in the Army.  The applicant had also reported that while working his civilian job, he had experienced numbness and tingling and night pain in his hands.  He received an operation to relieve that pain on 10 September 1993, a carpal tunnel release.  He had been working for a company operating a pipe line, with duties consisting of operating a jack hammer and using a pick and shovel.  The physician diagnosed the applicant as having degenerative joint disease of his cervical spine, a condition he attributed to his injury in the Army, and post right carpal tunnel release, a condition he attributed to his activities while he worked on the pipe line.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 12 November 1985, was awarded the military occupational specialty of infantryman, was promoted to pay grade E-4, and was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 17 February 1989 at his ETS.

Army Regulation 635-40, in effect at the time provided pertinently that while a member may have medical conditions or physical impairments ratable under the Veterans Administration Schedule for Rating Disabilities, he will not be retired or separated because of those conditions or impairments unless they render him unfit because of physical disability.  Further, the continuous performance of duty by a member whose service may soon be terminated for reasons other than physical disability gives rise to a presumption of fitness which may be overcome if the evidence established (a) That the member, in fact, was physically unable to perform the duties of his office, rank, grade, or rating even though he was improperly retained in that office, rank, grade or rating for period of time, or (b) acute, grave, illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member’s separation for reasons other than physical disability rendered him unfit for further duty.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

The VA is the agency which is responsible for rating medical conditions which are related to service.  The VA evaluates a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's latest examinations and findings.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant sustained a serious injury while on active duty for which he received extensive medical care.

2.  However, he was apparently returned to duty as evidenced by his successful completion of his term of service.  His medical fitness is also indicated by his choice of a civilian occupation which required strenuous, physical labor.

3.  Since the applicant's medical condition was not physically unfitting at the time of his separation, there was no basis to consider him for medical retirement or separation.

4.  The proper agency to handle any problems he is currently experiencing from the injury he received while on active duty is the VA.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director