APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.

APPLICANT STATES:  That he met the criteria for placement on the permanent disability retired list, and that he was unfit for service due to disabilities incurred in line of duty, which were greater than 20 percent at the time of his separation.

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

The applicant entered on active duty on 19 June 1979.  In May 1981 he was assigned to an infantry division in Korea.
He received nonjudicial punishment under Article 15, UCMJ, on two occasions while in Korea, for failure to go to his appointed place of duty and for disobeying a lawful order; and for AWOL from an orthopedic ward to avoid being medically evacuated to the United States.

A 22 May 1982 line of duty investigation shows that on 
10 April 1982 the applicant smashed his arm through a window, lacerating his right radial nerve and artery, in the act of violently opposing soldiers who tried to apprehend him, after he urinated on the floor of a club after curfew hours.  His actions were determined to be as a result of his own misconduct and not in line of duty.

The applicant was reassigned as a patient to a medical holding company at Fort Gordon, Georgia, and subsequently assigned to Fort Riley, Kansas. 

On 28 July 1982 the applicant’s commanding officer recommended that the applicant be separated for unsuitability under the provisions of Army Regulation 635-200, paragraph 13-4c.  The applicant consulted with counsel, and stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He stated that he understood the nature and consequences of the general discharge under honorable conditions that he might receive.  He declined to submit a statement in his own behalf.

A 2 August 1982 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 2 1 1 1 1.  A report of mental status evaluation shows that he was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to participate in board proceedings. The applicant met the medical standards for retention in the Army.  

A 4 August 1982 medical report shows that he was referred to orthopedics for continued treatment, i.e., physical therapy, because of the injury to his radial nerve. 

On 4 August 1982 the separation authority approved the recommendation and directed that the applicant receive a discharge under honorable conditions.  He was discharged on 
2 September 1982.  He had 3 years, 2 months, and 14 days of service. 

A 11 March 1983 VA rating decision awarded the applicant a 20 percent service connected disability for injury to his right radial nerve.  The rating decision narrative indicates that the applicant had submitted a report of his accidental injury which revealed that he put his hand through a glass door on 13 April 1982, the applicant stating that there was no accident report.  That narrative goes on to say that the applicant’s medical records were incomplete and do not show the incident on that date.

A 21 February 1985 VA rating decision continued the award of a 20 percent service connected disability for injury to the applicant’s right radial nerve, effective 
3 September 1982, and awarded the applicant a 10 percent disability for arterial hypertension effective 
9 October 1984.

On 6 February 1986 the Army Discharge Review Board granted the applicant’s request to upgrade his discharge to honorable.

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 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
 
Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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.

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.  Service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

2.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

3.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  Records provided by the VA indicate that the applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service. However, it is apparent that the VA is unaware that the applicant’s injury, for which he has received a disability rating, was the result of his own misconduct and determined to be not in the line of duty.

5.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

6.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

7.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

8.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

9.  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.

10.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  

1.  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

2.  This Board decision, along with a copy of the 22 May 1982 line of duty investigation, should be forwarded to the VA for whatever action that agency deems appropriate.
 
BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director