APPLICANT REQUESTS: That his honorable separation from active duty, with Special Separation Benefits (SSB), be corrected to a medical retirement.
APPLICANT STATES: That at the time of his separation he had a back condition which was 30 percent or more disabling, which should have resulted in his being medically retired.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He enlisted in the Regular Army on 23 March 1983 in pay grade E-3, was awarded the military occupational specialty of infantryman. Thereafter, he completed officer candidate school and was commissioned as a second lieutenant, infantry, on 1 June 1984. He served continuously on active duty and was promoted to captain.
While on active duty, he was treated for numerous illnesses and injuries. Those injuries resulted in his being diagnosed on 8 July 1991 as suffering from degenerative disc disease at C3-C4 with spinal stenosis (narrowing) and calcified disc or bony spurring slightly eccentric to the left.
The applicants officer evaluation reports (OERs) show that he had always passed the Army Physical Fitness Test (APFT) (except for one APFT test which he was excused from taking in November 1989 due to physical profile restrictions), with several remarks made on his reports concerning his high scores on those tests and his outstanding physical condition. He had taken his last APFT while on active duty in March 1993.
On 31 July 1993 he was honorably released from active duty, at his own request, with an SSB payment of $58,477.50.
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 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 physical evaluation board 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 entitled to basic pay.
Records obtained from the VA show that he was awarded a 40 percent disability rating from that agency for degenerative disc disease, C3-C4 to C6-C7, with bony spondylosis and/or bony spurring, central disc herniation, spinal stenosis with headaches, pain and tingling in both upper extremities, and myofascial pain.
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 back problems while on active duty, there is no evidence that it rendered him physically unfit to perform his duties. To the contrary, his OERs indicate that he was in top physical condition.
2. The applicants fitness for duty is further demonstrated by his lack of referral to a medical board. Absent such a referral, he could not be medically retired.
3. 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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