APPLICANT REQUESTS: That his records be corrected to show that he was given a medical discharge.
APPLICANT STATES: His ulcers were aggravated while he was on active duty, but were not evaluated by his physical evaluation board (PEB) even though his military physician requested a study of his stomach.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He enlisted in the Regular Army on 4 October 1983, was awarded the military occupational specialty of equipment records and parts specialist, and was promoted to pay grade E-5.
On 26 May 1987, while a student in parachute school, the applicant injured his left foot in a night parachute jump.
He was terminated from parachute school due to that injury and was given medical treatment for his foot, entailing three operations. He was given physical profile limitations for his foot.
On 15 October 1990 he was deployed to Saudi Arabia during Operation Desert Storm, and was returned to the United States on 11 April 1991.
On 1 July 1991 he was given a permanent physical profile for arthritis in his left foot.
On 22 August 1991 the applicant was considered by an MOS/Medical Retention Board (MMRB). The MMRB determined that the applicant should be referred to a medical evaluation board (MEB).
On 10 September 1991, while awaiting an MEB, the applicant was treated for intermittent pains as a result of an ulcer. On 9 January 1992 he was again seen for his ulcer with the treatment record showing that the condition had been successfully treated.
On 7 May 1992 the applicant was considered by a formal PEB which found him fit for duty. The applicant submitted a rebuttal to that finding which was considered and denied by the PEB.
On 8 October 1992 the applicant was honorably discharged at the expiration of his term of service
Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individuals physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty. The fact that the individual has a medically disqualifying condition does not mandate the persons separation from the service. Fitness for duty, within the perimeters of the individuals grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.
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 while performing active or inactive (weekend drill) duty.
Records obtained from the Department of Veterans Affairs show that the applicant has been awarded a 30 percent conbined disability rating by that department; 20 percent for doudenal ulcers and 10 percent for his left foot.
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. Although the applicant had an ulcer while on active duty, there is no indication that either that condition or his post-traumatic arthritic foot ever became physically unfitting.
2. To the contrary, his medical records show that his ulcer was successfully treated. This entry clearly establishes that his ulcer was well controlled with treatment and did not constitute a physically unfitting condition.
3. 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.
4. With all the available evidence showing that he was physically fit, he did not meet the statutory requirements for medical retirement.
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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