APPLICANT REQUESTS:  That he be retired for medical disabilities incurred while on active duty.

APPLICANT STATES:  He should have been medically retired in 1987 instead of being released from active duty and returned to his Army National Guard (ARNG) unit.  He claims that his discharge from the ARNG in 1994 for medical disqualification verifies that the Physical Disability Agency (PDA) made a mistake in its decision not to medically retire him.

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

He enlisted in the ARNG with no prior service on 14 January 1974, entered on his initial active duty for training on 4 June 1974, was awarded the military occupational specialty of supply specialist, and was honorably released from active duty and returned to his ARNG unit on 5 December 1974.

He served continuously in his enlisted status in the ARNG, being promoted to pay grade E-5, serving as a personnel carrier driver, recovery vehicle mechanic, radio telephone operator, and team leader.  He was honorably discharged from the ARNG on 30 April 1981, the day preceding his enlistment in the Army Reserve (USAR).  He served in the USAR in pay grade E-5 as an infantryman and a unit supply specialist.

On 9 April 1986 he was commissioned as a second lieutenant, USAR.  On 28 September 1986 he entered on active duty to attend the basic course for the Adjutant General Corps.  He was involuntarily released from active duty and returned to his USAR unit on 23 January 1987 due to his failure to achieve course requirements.  

On 3 August 1988 he was honorably discharged from the USAR due to his failure to complete the officers basic course.

On 10 February 1990 the applicant enlisted as prior service in the ARNG in pay grade E-5.  He served as a petroleum supply specialist and was honorably discharged on 23 November 1994 due to medical disqualification.

The applicant’s medical records show that he underwent surgery for maxillary skeletal deficiency (facial skeletal deformity, or ”overbite”) at the veterans administration medical center on 18 June 1986 (after his commission but prior to his entry on active duty for the Adjutant General basic course).  That surgery was categorized by the VA as an elective procedure the applicant chose to have performed because he could not bring his front teeth together.  The desired results of the surgery was stated to be cosmetic in nature.

On 1 October 1986, 3 days after his entry on active duty, the applicant was seen at the dental clinic complaining of a 35 pound weight loss and a feeling of weakness, both problems attributed to his 18 June 1986 surgery at the VA.  The applicant continued receiving dental care for post-operative mouth problems.  During that time he reported having constant headaches unrelieved by non-prescription medication and was prescribed Tylenol #3 (with codeine), valium and Sudafed (for a cough).

On 21 October 1991 a medical evaluation board (MEB) was convened due to the applicant’s inability to deploy to Saudi Arabia during Operation Desert Storm.  The applicant’s chief complaint was a history of chronic middle ear disorder and status post bilateral modified radical mastoidectomies (pertaining to his facial skeletal surgery at the VA).  The MEB found that the applicant suffered from mixed hearing loss, bilateral, and degenerative joint disease with post traumatic arthritis, left knee and left wrist.  

A formal physical evaluation board (PEB) was convened on 21 August 1992 and determined that the applicant was physically unfit due to degenerative joint disease, post-traumatic arthritis, left wrist, and due to chronic mastoiditis, mild, manifested by pain and continuing suppuration.  The PEB recommended that the applicant be discharged with severance pay, rated 10 percent disabled, contingent on the applicant’s unfitting conditions being found to have been incurred in line of duty (the applicant reported that he injured his wrist during a boxing match while on active duty in 1974, and injured his knee in a motor vehicle accident in 1973, prior to his enlistment in the military).

On 22 February 1993 the PDA reversed the recommendation made by the formal PEB, finding that he was physically fit for duty.  The PDA added that both of his physically unfitting conditions existed prior to service (EPTS).  (For a reservist, the term EPTS denotes that the condition was not incurred while the individual was in a duty status, either active duty or during weekend drill and it does not necessarily mean that the condition existed prior to the reservist’s initial entry into the military).  According to the PDA, an orthopedic specialist who examined the applicant did not find his wrist or knee medically disqualifying, and his military supervisor stated that he could perform his job in the ARNG.

The applicant appealed that ruling to the Army Physical Disability Appeals Board (APDAB).  On 23 May 1993 the APDAB confirmed the PDA’s finding that the applicant was fit for duty.

On 19 March 1994 the applicant was given an over-38 (years old) physical examination.  During that examination the applicant stated that he was in poor health and reported that he suffered from degenerative joint disease with post-traumatic arthritis to both his left knee and left wrist; he was restricted to duty assignments in which he would be exposed to noise no greater than 85 decibels; and he had been diagnosed as opiate dependent.  He also claimed to suffer from chronic temporomandibular head pain as a result of his 1986 VA surgery, an operation he claimed he was told he must have by the Army.  The applicant was found medically disqualified for retention during that examination.

The applicant continued to seek medical treatment for his headaches at the VA and was referred to psychiatry for apparent drug-seeking behavior.  The applicant told the psychiatrist that his ARNG command asked him to seek treatment for alcohol and chemical dependency in 1990, which he refused because “he didn’t want to go somewhere where he didn’t want to go.”  The VA psychiatrist diagnosed the applicant as being chemical dependent.

On 29 November 1994 the applicant was honorably discharged from the ARNG by reason of medical disqualification for retention.

On 1 February 1995 the applicant began undergoing a series of physical examinations by the VA.  Those examinations resulted in his being awarded a 30 percent disability rating, 10 percent for impaired hearing, 10 percent for benign growth in his ears, and 10 percent for a bone condition.

Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel in the USAR.  Paragraph 12-1 prescribes the procedures for separating members for medical disqualification.  This paragraph requires a member who is determined to be medically disqualified for retention to be discharged or transferred to the USAR Control Group (Retired) (regardless of years of service), unless the member requests, and is granted, a waiver.

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be not in line of duty.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

Army Regulation 635-40, the regulation which governs PEB’s, paragraph 4-19b, states that a PEB may decide that a soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.  The method of determining the percentage of disability to be awarded in such cases is outlined in appendix B, item B-10 of this regulation.

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 during a period of active or inactive duty.

The Army disability rating system reacts based upon the service member’s physical status at a given point in time while the individual is on active duty.  To be separated for physical disability, a soldier must be physically unfit to perform the duties of his rank and grade.  If a disability rating is awarded by the Army, it is permanent and will not change.  Unlike the military, the disability ratings of other agencies are not contingent on fitness for military duty and may fluctuate based upon an individual’s physical condition at the time of last physical examination.  Disability ratings awarded by the Army are not based upon the same principles as other agencies and, consequently, those agencies may award disability benefits when the Army does not or, if the Army grants disability benefits, the ratings awarded by those agencies may differ from those awarded by the Army.  If a soldier’s physical condition deteriorates after he is discharged from the Army, his disabilities are properly addressed under other disability systems.

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.  There is no evidence that any of the applicant’s medical conditions were service related.  The operation that he contends caused his headaches was performed by a VA hospital prior to his entry on active duty.  The motor vehicle accident that caused the injury to his knee occurred prior to his initial enlistment in the military.  Although he states that he injured his wrist while on active duty, there is no evidence of that injury in his medical records.  Likewise, there is no evidence that the applicant’s hearing problems were incurred while he was on active duty.

2.  The applicant’s contention that his discharge from the ARNG due to medical disqualification proves that he should have been medically retired is not accepted by the Board.  He has confused medical disqualification, the sole criteria for discharge of a reservist under Army Regulation 135-178, with physical unfitness, the criteria for separation with disability benefits.  He has also neglected to consider service connection in the two separations.

3.  The Board notes that the applicant served for 7 years after his release from active duty in 1987 and enlisted as prior service in 1990.  It is reasonable to presume that he had taken physical examinations during that time, examinations which obviously found him to be medically qualified.  In addition, during his consideration by the PEB, his military supervisor stated that he was able to perform his military duties.  These facts reinforce the determination that the applicant was physically fit for duty and that none of his pre-existing conditions were aggravated by military duty.

4.  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