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ARMY | BCMR | CY1990-1993 | 9307980
Original file (9307980.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his discharge for medical unfitness with severance pay, rated 20 percent disabled, be changed to a medical retirement.

APPLICANT STATES : That he was not given due process in his medical board proceedings. He was arbitrarily thrown out of the Army without all of his medical problems being rated.

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

He enlisted in the Regular Army on 27 March 1984 and was awarded the military occupational specialty of infantryman.  He served continuously and was promoted to pay grade E-5.

On 16 August 1991 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 interstitial cystitis, manifested by suprapubic and perineal pain, urinary frequency, urgency and nocturia; chronic cystitis, microscopic diagnosis, with negative urine cultures; gastroesophageal reflux; sinusitis, manifested by nasal and sinus congestion and intermittent chronic cough; and chondromalacia, left knee, mild. The MEB referred him to a PEB.

On 23 September 1991 a physical evaluation board (PEB) was convened and determined that the applicant was physically unfit due to interstitial cystitis with dysuria, frequency and nocturia, rated as moderately severe. The PEB determined that the other medical defects were not physically unfitting and, therefore, not ratable. The PEB then determined the applicant’s one unfitting condition to be 20 percent disabling and recommended that he be discharged with severance pay.

Accordingly, on 8 November 1991 the applicant was honorably discharged with severance pay rated 20 percent disabled. He had a total of 7 years, 7 months and 12 days of active service.

Records obtained from the Veterans Administration (VA) show that he was given a combined rating of 30 percent, 20 percent for interstitial cystitis and chronic cystitis, 10 percent for gastroesophageal reflux, and zero percent for both septoplasty (surgical reconstruction of nasal septum) and tonsillectomy.

Army Regulation 635-40 provides that members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. The fact that the individual has a medically disqualifying condition in of itself does not mandate that the condition(s) be rated. Each condition must be evaluated to determine whether it renders the individual physically unfit to perform his duties. Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to rating a condition. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded for each unfitting condition which, in turn, determines whether an individual will be discharged with severance pay or retired.

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 physically 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. Although the applicant’s MEB noted several medical defects, his PEB only rated him on the one condition which was found to be physically unfitting.

2. The applicant has not shown that his unfitting condition was improperly rated or that the other medical conditions he had at the time he was medically boarded were unfitting and, therefore, ratable.

3. The differences in ratings between the Army and the VA are fully explainable and does not indicate that either rating is in error. To the contrary, the VA also rated the applicant’s interstitial cystitis and chronic cystitis as 20 percent disabling. Of the three other ratable conditions, one was rated as 10 percent disabling and the other two were rated as zero percent disabling. These ratings denote minor conditions which, in all likelihood, would not be considered to be physically unfitting by the Army.

4. In view of the foregoing, there is no reason to grant 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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