APPLICANT REQUESTS:  Correction of his military records to reflect disability retirement.

APPLICANT STATES:  He states that he suffered a heart attack in February 1990 at the age of 34 and underwent bypass surgery.  He notes the VA granted him a combined 50 percent disability rating for his heart condition, left ankle scar and back injury.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He served on active duty between January 1985 and May 1989. While his service medical records indicate he was treated for lower back pain and an ankle injury while on active duty there is no evidence of a permanent physical profile or any indication he was unable to perform his military duties as a result of any medical condition.

Although there is no indication the applicant underwent a physical examination in conjunction with his separation processing his records do contain a statement that his service medical records were reviewed and that a separation physical examination was not required.

Subsequent to his separation the applicant was a member of a Reserve component engineer battalion in New Jersey.  His performance evaluation report for the period May 1989 through November 1989 noted the applicant “performs outstanding under pressure” and that he successfully passed a physical fitness test in June 1989.

In February 1990 the applicant “suffered an anterior wall myocardial infarction” and on 28 February 1990 underwent “coronary artery bypass grafting.”  

He reported for two weeks of annual training with his Reserve unit in June 1990 and according to his annual performance evaluation report, rendered in November 1990 he successfully passed the Army’s physical fitness test in June 1990.  His overall performance and potential was rated in the top block by his senior rater.

On 25 August 1992 the applicant was released from his Reserve unit and transferred to the USAR Control Group for “unsatisfactory participation” after several unexcused absences from training.  In April 1993 the applicant’s 8 year statutory military service obligation expired and he was honorably discharged from the Army Reserve.

As of July 1996 the applicant was receiving a combined 50 percent disability rating from the VA (30 percent for myocardial infarction, 20 percent for lumbosacral strain, and 10 percent for donor site scar on his left lower leg).

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 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was provided by the medical advisor to the Review Board Agency.  It noted that “severe coronary artery disease in a 34 year old man is unusual.  Without a doubt this condition was present both before, during, and after the applicant’s Active Duty time.  However, it did not manifest itself, did not interfere with his performance of duty, and was not aggravated by his time in the Army.”

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.  Although the applicant service medical records noted treatment for several ailments during his military service his continued performance of duty until his separation from active duty in November 1992 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation. 

2.  There is no evidence his heart condition impacted on his ability to perform his military duties while on active duty or during his period of service in the Army Reserve.  His transfer from his Reserve unit to the Control Group was related to his unsatisfactory attendance and not any medical condition.

3.  The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  The preceding is consistent with the information provided in the advisory opinion.

5.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.
6.  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.

7.  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