APPLICANT REQUESTS:  That the honorable discharge he received due to his Department of the Army bar to reenlistment, reduction in force, be corrected to a medical retirement.

APPLICANT STATES:  That he injured his left elbow in an accident in a printing plant.  After receiving surgery on his elbow, he was told that he was to be medically boarded.  Instead of being medically retired, he was administratively discharged without benefits for his injury.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:  

That he enlisted in the Regular Army on 28 December 1984 with prior active and reserve service.  He was awarded the military occupational specialty of unit supply specialist and was promoted to pay grade E-5.  

On 21 December 1992 the applicant accepted nonjudicial punishment under Article 15, UCMJ, for his failure to go to his appointed place of duty, for two counts of being disrespectful towards a noncommissioned officer, and for disobeying a lawful order.  The punishment imposed consisted of a reduction to pay grade E-4.

On 10 July 1993 the applicant was notified that he had been barred from reenlistment by the Department of the Army due to three substandard noncommissioned officer evaluation reports.

Accordingly, on 9 March 1994 he was honorably discharged with $9,408.24 in separation pay.  

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board for a determination of the percentage of disability to be awarded.  This regulation also provided in pertinent part that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation.  

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.  

Records obtained from the VA show that the applicant has been awarded a 10 percent disability rating for cervical and lumbar paravertebral muscles strain and myositis (inflammation of a voluntary muscle).

In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Medical Advisor who stated that although the applicant had a veritable plethora of physical complaints while on active duty, each complaint was thoroughly checked out and either no problem was found or the condition was determined minor enough not to be medically disqualifying.  The ARBA Medical Advisor also notes that the VA has not found the applicant to suffer from any disabilities after his discharge.  The ARBA Medical Advisor concludes that the applicant has provided no proof of any medical reason for a disability retirement.

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

1.  The applicant was never determined to be medically unfit and, therefore, was not referred to a medical evaluation board.  Absent this referral, the applicant was not eligible for separation by reason of physical unfitness.  

2.  Contrary to the applicant’s contentions, there is no indication that he had any medical condition which rendered him unfit to perform the duties of his office, rank, grade or rating.

3.  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