APPLICANT REQUESTS:  That his discharge for medical unfitness with severance pay, rated 20 percent disabled, be voided and his name be placed on the retired list, rated at least 30 percent disabled.

APPLICANT STATES:  That all of his disabilities should have been considered in determining his rating.

In support of his application he submits a copy of his VA rating decision wherein he is rated 20 percent disabled due to degenerative disc disease, lumbar spine; 10 percent disabled due to residuals, right knee injury with traumatic arthritis; and 10 percent disabled due to residuals, left knee injury with traumatic arthritis.  He is also assigned three zero percent ratings for bilateral hearing loss, hemorrhoids, and prostatitis.  He was awarded a combined disability rating of 40 percent by the VA.

COUNSEL STATES:  That the applicant’s contentions are adequately set forth in his request.  Counsel asks for the careful and sympathetic consideration of his request and a fair and impartial decision.

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

He enlisted in the Regular Army on 30 March 1982, was awarded the military occupational specialties of special forces radio operator and light weapons noncommissioned officer.  He was promoted to pay grade E-6 and was discharged as an enlisted soldier due to his appointment as a warrant officer on 31 May 1989.

He remained on active duty and was promoted to chief warrant officer two.  On 8 December 1993 a Medical Evaluation Board (MEB) was convened to determine whether the applicant was qualified for retention.  The MEB determined that he was medically disqualified, suffering from multilevel degenerative disc disease of the lumbar spine, high frequency hearing loss, and mild degenerative joint disease, bilaterally, of his knees.  The MEB referred him to a Physical Evaluation Board (PEB).

On 1 February 1994 a PEB was convened and determined that the applicant was medically unfit due to multilevel degenerative disc disease of his lumbar spine.  The PEB determined that the other two medical defects were not disqualifying and, therefore, not ratable.  The PEB determined that the applicant’s one unfitting condition was 20 percent disabling and recommended that he be discharged with severance pay.  The applicant concurred with those findings and recommendation and waived a formal hearing of his case.  The PEB’s recommendation was approved and he was honorably discharged with $54,640.00 in severance pay, rated 20 percent disabled, on 24 March 1994.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who is physically unable to perform the duties of his office, rank, grade, or rating due to a physical disability incurred while entitled to basic pay and who has at least 20 years of service or a disability rated at least 30 percent.

In compliance with this statute, Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are unfit to be retained in the Army and, if so, to determine the percentage of disability to be awarded.  This regulation states that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Essentially, the Army only compensates a soldier for the disabilities which causes the termination of his or her career.  Other medical defects, which are not found to be unfitting for the soldier to perform his or her duties and, therefore, would not have resulted in his or her separation, are not ratable.  Compensation for medical defects which are not unfitting is within the purview of the VA, not the Army.

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.  Neither the applicant’s high frequency hearing loss nor his mild bilateral degenerative joint disease of his knees was found to be unfitting and, therefore, was not rated by the PEB.

2.  The applicant has not submitted any evidence or argument which would show that his other two medical defects prevented him from performing his military duties.  Therefore, he has not shown that an error was made when they were considered non-ratable.

3.  As such, the applicant’s contention that he should have received a more enhanced disability rating and his request that his name be placed on the retired list are not justified by the medical evidence as applied against U.S. Code.  Changes in the U.S. Code are under the purview of Congress, not the Army.

4.  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