APPLICANT REQUESTS:  Reconsideration of the denials of his applications for correction of his military records wherein he requested that he be medically retired.

APPLICANT STATES:  He was never afforded a medical evaluation board (MEB) after he injured himself on annual training with his Army National Guard (ARNG) unit in August 1974.  The minor problem caused by that injury has since deteriorated to a major disability which has resulted in his being awarded a 70 percent disability rating by the Department of Veterans Affairs (DVA).

NEW EVIDENCE AND/OR INFORMATION:  In support of his current request the applicant submits a DVA decisional document which awards him a non-service connected disability pension based on a combined non-service connected rating of 70 percent disabled.  He also submits a letter from the Washington ARNG pertaining to the injuries he incurred while on his initial active duty for training and while he was attending his ARNG unit’s annual training.

EVIDENCE OF RECORD:  The applicant’s military records were incorporated in the Memoranda of Consideration prepared during the prior reviews of his case.

The Board denied the applicant’s original request on 16 February 1972.  In that application he requested that his discharge for medical disqualification be voided and that he be allowed to reenlist.  He claimed in that application that his disabilities had not given him any problems since his discharge.  On 7 December 1972 the Board denied an  application from him to have his discharge corrected to a medical retirement.  On 9 March 1976 he submitted another application to the Board requesting that his reentry (RE) code be changed so he could reenlist.  In support of that request he submitted a letter from his civilian physician which stated that he did not have any physical or mental disabilities that would preclude his reenlistment in the service, with the possible exception of his visual acuity.  On 21 December 1977 the Board denied another application from him to correct his discharge to medical retirement.  In that denial, the Board stated that the applicant was discharged from active duty due to medical disqualification for induction which existed prior to service (EPTS), which was not service aggravated.  On 23 May 1979 the Board denied another application from him requesting a medical retirement.  On 18 July 1979 the Board denied another application from him for a medical retirement.

He enlisted in the Regular Army on 29 July 1971 for 3 years in pay grade E-1.  While in basic training, on 25 August 1971 he requested discharge under the provisions of Army Regulation 635-200, paragraph 5-9, due to a medical condition which was disqualifying for enlistment but not for retention and which existed at the time of his enlistment.  In that request he acknowledged that he would be separated without disability benefits.  His request was approved and he was honorably discharged on 8 September 1971 due to physical disability, EPTS.

On 13 November 1972 he enlisted in the ARNG in pay grade 
E-2.  He was promoted to pay grade E-3 and served as a clerk typist.  He was discharged from the ARNG on 25 July 1973 due to his enlistment in the Army Reserve (USAR).

On 5 February 1974 Madigan Army Medical Center (AMC), Tacoma, Washington, sent a letter to the applicant’s USAR commander advising him that the applicant had come to that facility on numerous occasions during the preceding 2 years attempting to obtain a medical retirement for an alleged nervous condition.  His medical record had been reviewed during those instances with no evidence to support his claim.  He was considered by medical personnel at Madigan AMC to be a “chronically nervous and inadequate individual, the type of individual that experience says will probably never make an adequate adjustment to any form of military duty.”  In that letter it was recommended that the applicant be given an administrative discharge.  In response to that letter, the appropriate Army Reserve Command (ARCOM) surgeon reviewed the applicant’s medical records.  The surgeon noted that the applicant had been air evacuated from Fort Stewart, Georgia, to Madigan Army Hospital in June 1973.  The applicant had been diagnosed at that time as having a passive-dependent personality, chronic, moderate, EPTS.  The surgeon continued that the nature of the applicant’s separation from active duty would have required a waiver for his enlistment, a waiver which there was no evidence of being granted.  The surgeon concluded that the applicant was medically disqualified under procurement medical fitness standards.  

Accordingly, the applicant was honorably discharged due to medical disqualification on 19 June 1974.

On 28 June 1974 the applicant reenlisted in the ARNG in pay grade E-3.  On 11 August 1974 the applicant was seen at the emergency room at Madigan Army Hospital, stating that he had fell backwards in the barracks.  He was diagnosed as having muscle spasms and point tenderness.  Diagnostic X-rays were taken and were negative for any fractures.  He was given pain medication and returned to duty.  On 12 August 1974 the applicant reported back to the hospital requesting evaluation for medical retirement.  He was then diagnosed as having minor chronic low back pain with no organic basis.  At that time the applicant reported that he had initially fell on his back during basic training 3 years before.

On 28 August 1974 the ARNG published orders voiding the applicant’s enlistment due to his failure to meet procurement medical fitness standards.

The Army disability rating system determines and rates a service member’s physical condition at the point in time that he or she is considered by the MEB and PEB.  If the service member is found permanently physically unfit for the performance of his military duties, he is given a permanent rating which never changes.  Existing medical conditions that are not considered unfitting are not assigned a rating.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 38, U.S. Code, section 521, Non-Service Connected Disability Pension, provides pensions to veterans who served for at least 90 days on active duty during the Mexican Border Period, World War I, World War II, the Korean Conflict, or the Vietnam Era for non-service related disability.  To be eligible, the veteran must be totally disabled from a non-service related disability which was not the result of the veterans willful misconduct or vicious habits.  Under the improved pension rates effective in 1996, a veteran may receive between $8,246.00 to $15,744.00 a year, with an addition of $1,404.00 per each dependent child, and an addition of $1,867.00 for veterans of World War I and the Mexican Border Period.

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.  The applicant’s record does not show that he was ever injured while performing military duties to an extent that would render him physically unfit, a requirement for being medically retired.

2.  By the applicant’s own admission, his back problems originated while he was in basic training in 1971.  However, while on active duty in 1971 he had stated that his disqualifying condition existed at the time of his enlistment and that he understood that he would be separated without disability benefits.

3.  The decisional document awarding the applicant a 
non-service connected disability pension supports that the applicant was not entitled to a medical retirement from the Army, not the opposite.  Non-service connected disabilities are disabilities which were not incurred or aggravated during military service.

4.  The applicant has fluctuated from being fit for duty to physically unfit in his several applications to the Board.  For that matter, medical documentation that he, himself, had submitted with earlier applications requesting changes to his records to allow him to reenlist, establish his fitness for duty.

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




						Karl F. Schneider
						Acting Director