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ARMY | BCMR | CY1980-1989 | 8004577
Original file (8004577.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Reconsideration of the denial of his application for correction of his military records wherein he requested that his honorable discharge for completion of required service be corrected to medical retirement. He also requests that his reduction in pay grade be voided.
APPLICANT STATES : That he was put out of the Army after sustaining a life-threatening gunshot wound which caused the loss of organs. He contends that the severity of his wound warranted his medical retirement. However, he states that his wound was never established as being in line of duty due to the court-martial of the soldier that shot him, an omission which resulted in him not being medically retired.

NEW EVIDENCE AND/OR INFORMATION : In support of his request the applicant submits an undated letter from the Chief of the Criminal Law Division, Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, Kansas, in which it is stated that there was no evidence the applicant was in any way responsible for his wound.

EVIDENCE OF RECORD : The applicant’s military records were incorporated in the Memorandum of Consideration prepared during the original review of her case.

The Board denied the applicant’s original application in a Memorandum of Consideration (COPY ATTACHED) on 18 February 1981.

The applicant enlisted in the Regular Army on 31 March 1976, was awarded the military occupational specialty of radio operator, and was promoted to pay grade E-3.

While on active duty he accepted punishment under Article 15, UCMJ, on five occasions, one of which reduced him in grade from pay grade E-3 to E-2 for sleeping on guard duty.  The applicant was promoted back to pay grade E-3 prior to his separation.

On 24 March 1979 the applicant was shot by a fellow soldier with a pistol. The incident was reported to have occurred accidentally when the other soldier was practicing quick draw of the weapon.

The applicant was treated for his wound, placed on convalescence leave, was extended on active duty beyond the expiration of his term of service to complete his convalescence, and was returned to duty and released from active duty on 22 June 1979.

The applicant was transferred to a USAR unit in conjunction with his release from active duty but was involuntarily transferred to the USAR Control Group on 1 February 1980 due to his failure to attend unit training assemblies.

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 performing active or inactive (weekend drill) duty.

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 wound had healed to the degree where, although he may have had profile restrictions imposed on the type of duty he could perform or the assignments he could accept if he had remained on active duty, he was medically qualified for retention in the Army. His transfer from the Regular Army to a USAR unit confirms his fitness for duty.

2. The letter submitted by the applicant has no bearing on his case. The applicant was not medically retired because he was fit for duty, not because the cause of his wound was considered to be misconduct.

3. Therefore, the applicant was properly released from active duty because he had completed his required service.

4. As for the applicant’s reduction in grade, his records show that he was reduced for sleeping on guard duty.  That reduction was not associated in any way with his gunshot wound. That reduction was proper and there is no reason to void it.

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

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