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ARMY | BCMR | CY1980-1989 | 8109050d
Original file (8109050d.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, reconsideration of his previous request to correct his records by showing that he was separated due to physical disability.

APPLICANT STATES: That he should have received a medical discharge due to the recent VA rating decision that awarded a combined rating of 30% retroactive to the day after discharge 7 April 1970.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 15 November 1989.

In support of his application the applicant submits a 1981 and 1983 disability rating by the VA. He contends that since some of the VA ratings are retroactive to the day after his separation he should have received a medical discharge. He also submits a letter addressed to him from the VA dated 20 December 1996 that details his benefits, the evaluations, and past payments.

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.

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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides 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, rendered the member unfit.



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

1. The law and regulations make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability.

2. While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army. The Army rates only conditions which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career. The VA, however, may rate any service connected impairment, thus compensating for loss of civilian employment. Therefore, it is not unexpected that these two different systems would produce different evaluations.

3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. There is no right to a medical evaluation board. Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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


                                                      Loren G. Harrell
                                                      Director

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