APPLICANT REQUESTS: In effect, that the documentation which pertains to the reason for his separation from service be corrected to read that he was separated and permanently retired with a 10 percent disability rating, due to shrapnel wounds to the right foot and that “maximum service” be deleted for the reason for separation and make the correction retroactive to his retirement.  

APPLICANT STATES: In effect, that the formal physical evaluation board (PEB) proceedings, dated 13 November 1994, omitted key information which substantiated that he could no longer do his job during the last 10 months of active duty and that the board was highly prejudice.

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

He was born on 1 April 1937.  On 3 June 1960, the applicant was appointed as a reserve commissioned officer of the Army, in the rank of second lieutenant.  On 13 February 1962, he was ordered to active duty, in the rank of second lieutenant, for 3 years.

On 5 December 1965, while assigned to a unit in Vietnam, the applicant was wounded in the right foot by shrapnel.  He was awarded the Purple Heart for wounds received by hostile fire.  

On 1 July 1983, after serving over 21 years of exemplary service the applicant was promoted to pay grade 
O-6 (Colonel).

On 15 March 1990, the applicant received a physical profile for the tarsalgia and metatarsalgia of the right foot.

The applicant’s Officers Evaluation Report (OER), dated 
24 October 1991, indicated that the applicant could not meet the rigorous physical demands of today’s Army because of his current physical impairment.  However, the applicant’s last OER was superior in every other aspect.
       
On 5 August 1991, the applicant appeared before a Medical Evaluation Board (MEBD).  He was diagnosed as having chronic low back pain; bilateral knee pain; tarsalgia and metatarsalgia, right foot secondary to wound in 1965.  
The MEBD referred the applicant to an informal Physical Evaluation Board (PEB).  On 22 August 1991, the applicant nonconcurred with the MEBD findings and recommendation and offered a statement reflecting his opinion concerning the pain and nerve damage in his foot.  On 26 August 1991, the MEBD reviewed and considered the statement made by the applicant but reaffirmed the prior decision.  

On 20 September 1991, an informal PEB found the applicant fit for continued military service.  The medical member of the PEB was of the opinion that the applicant was fit for duty even if the presumption of fitness rule was not applicable. 

On 20 October 1991, the applicant nonconcurred with the informal PEB’s decision and demanded a formal hearing.  The applicant submitted additional statements from co-workers and also submitted as evidence his new officer evaluation report, which stated that the applicant could not adequately perform his job due to pain in his foot.

On 13 November 1991, a formal PEB was held.  The applicant presented detailed exhibits and statements concerning his physical condition.  The formal PEB made specific findings of fact that the applicant had performed adequately up to his initial date of mandatory retirement, that he was recommended for promotion based upon his performance during that period, and that he had overcome the presumption of fitness.  On 21 November 1991, the applicant nonconcurred with the formal PEB’s decision.  On 2 December 1991, the PEB reconsidered the case and reaffirmed the prior findings.  

On 13 December 1991, the United States Army Physical Evaluation Agency (USAPDA), after careful review, reaffirmed the formal PEB findings and recommendations.  The USAPDA was of the opinion that the applicant’s medical condition did not end his career.    

On 31 December 1991, the applicant was honorably released from active duty, under the provisions of Army Regulation 635-100, paragraph 4-25, in pay grade O-6, the narrative reason for separation was maximum service.  On 1 January 1992, he was placed on the retired list in pay grade O-6.  He served 30 years, 5 months and 3 days of creditable active service.  He was awarded the Legion of Merit, the Distinguished Flying Cross, the Bronze Star Medal, the Meritorious Service Medal, the Air Medal, the Joint Service Commendation Medal, the Army Commendation Medal, the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Army Service Ribbon and the Overseas Service Ribbon.          

On 11 June 1992, the applicant appealed to the Secretary of the Army.  Upon further review of the applicant’s case the office of the Secretary of the Army reaffirmed the prior findings.

On 2 July 1992, the Department of Veterans Affairs (VA) awarded the applicant a 10 percent service connected disability rating for foot pain.

The USAPDA, in a comment (COPY ATTACHED) to this Board, opined that the applicant was medically fit for retention at the time of separation and recommended that his records not be corrected on a medical basis.

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.

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, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's contentions do not demonstrate error or injustice.  Disability compensation is designed to compensate those soldiers whose careers are ended because of physical disability.

3.  The applicant’s record clearly shows that his foot injury did not hinder his promotions, performance of duty, or completion of more than 30 years of active service. The applicant was to retire in July of 1991 and as late as April 1991, his latest OER stated he could perform his duties and should be promoted.       

4.  The applicant has the burden of proof to overcome the presumption of fitness rule. The applicant has not submitted probative evidence nor a convincing argument in support of his request.   


5.  In view of the foregoing, the type of discharge directed and the narrative reason for separation were appropriate considering all the facts of the case.    

6.  There is no basis for granting the applicant’s requests. 

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