APPLICANT REQUESTS:  That his retirement for length of service be corrected to a medical retirement.

APPLICANT STATES:  After his retirement he was diagnosed as having cancer of his nasal passage.  He is a Vietnam veteran and worked with Agent Orange when he was a supply clerk.  The VA has determined that his cancer is service connected, and has granted him a disability rating for that condition.  However, he believes that it is an injustice that his rating from that agency was reduced to 20 percent in 1995 without any consideration of the residuals of his cancer.

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

He enlisted in the Regular Army on 10 June 1970, was awarded the military occupational specialty (MOS) of unit supply specialist, served in Vietnam, and was promoted to pay grade E-7.

The applicant’s last two Noncommissioned Officer Evaluation Reports (NCOER) show that he was given an overall potential for promotion and/or service in positions of greater responsibility rating of “Among the best”, the highest rating possible.

On 31 October 1991 he was honorably retired for length of service in pay grade E-7.

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.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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’s ratings on his NCOER’s conclusively show that he was physically fit to perform the duties of his grade and MOS at the time of his retirement.

2.  Whether or not the applicant had cancer while he was on active duty is not germane in this case.  It was not physically unfitting at the time of his discharge.

3.  If the VA has assigned the applicant a rating (he did not include his VA records) for his cancer, that action would be in keeping with the prescribed function of that agency; i.e., to provide medical care and monetary compensation for service related medical conditions.  Any such action taken by the VA would not imply that the action taken by the Army was in error.

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