APPLICANT REQUESTS: That his records be corrected to show that he was retired for a physical disability.
APPLICANT STATES: That the VA awarded him a service-connected disability rating of 30 percent, therefore, the Army should do the same.
COUNSEL CONTENDS: That resolution of this case should be in favor of the applicant.
EVIDENCE OF RECORD: The applicant's military and medical records show:
On 16 September 1987, he enlisted in the Regular Army.
On 9 April 1991, a physical examination cleared him for separation. The examination noted he had a heel spur, mild RAD.
On 17 April 1991, he was honorably separated under Army Regulation 635-200, chapter 4, based on the expiration of his term of service. His Report of Separation indicates he had 3 years, 7 months and 2 days of creditable service.
On 13 May 1994, a VA Rating Decision awarded him a combined service-connected disability rating of 20 percent, for heel spur, right, 10 percent and restrictive airway disease, 10 percent, effective 18 April 1991.
On 27 February 1995, a VA rating Decision increased his rating to 40 percent based on the addition of lumbosacral strain, 20 percent.
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 individuals 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.
Title 10, United States Code, sections 1201 and 1203, provides for the physical disability retirement and separation, respectively, of a member who has at least 20 years of service or a disability rated 30 percent disabling.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.
3. The evidence in this case does not support his contention that there was an error or injustice in his separation.
4. The Rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating. 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 do the same.
5. In view of the foregoing, there is no basis for granting the applicants 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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