APPLICANT REQUESTS: That his record be corrected to show that his discharge was based on physical disability.
APPLICANT STATES: That he met the requirements for a physical disability discharge.
EVIDENCE OF RECORD: The applicant's military and medical records show:
On 2 September 1980, he enlisted in the Regular Army. He was promoted to pay grade E-5, effective 1 April 1983.
In 1984, he first complained of and was treated for low back pain. Radiological tests performed show no deformity or injury.
In 1985, he fell from a bicycle and injured his left shoulder. X-rays taken at that time did not note a fracture, however, later films show his left clavicle with a distal deformity. Examinations by the VA show that the range of motion is well within the parameters set by medical retention standards.
On 20 October 1992, his command approved a local bar to reenlistment based on 12 formal counselling statements, during the period 26 July 1991-8 October 1992, for poor duty performance on 3 occasions; for his alcohol and drug abuse program termination; for his drunkenness; for being absent from his place of duty; for his failure to repair; and, for being late for duty on 5 occasions. In his appeal, the applicant indicated that he did not feel that his shortcomings, for which he was being barred from reenlistment, would have an adverse impact on his military discipline or the good order or morale of those under him; that he would not be a disruptive influence in his present or future duty assignments; and, that he could display his ability as an NCO to perform his duties, including potential for advancement and leadership.
On 10 July 1993, the CY93 Master Sergeant Selection/Sergeant Qualitative Management Program (QMP) Board barred his from reenlistment based on his failure to demonstrate professional ability by performance of duty and standards of conduct to set an example for junior soldiers.
On 23 June 1993, a physical examination cleared his for separation with a 111111A physical profile.
On 23 September 1993, he was honorably discharged, in pay grade E-5, under Army Regulation 635-200, paragraph 16-8, based on the QMP. He received separation pay in the amount of $23,985.00. His Report of Separation indicates that he had 13 years and 22 days of creditable service.
On 6 August 1994, a VA Rating Decision awarded the applicant a combined, service-connected disability rating of 60 percent, effective 23 September 1993, for (1) residuals of a fracture of the left clavicle, 20 percent; (2) pes planus, 10 percent; (3) hallux valgum of the right great tow, 10 percent; (4) chondromalacia patella, right knee, 10 percent; (5) chondromalacia patella, left knee, 10 percent; (6) residuals of a right hand injury, 10 percent; (7) LB strain, 10 percent; (8) pinquecla bilateral, 0 percent; (9) post operative cyst of the earlobes, 0 percent; and, (10) acne, 0 percent.
On 26 November 1996, an opinion (COPY ATTACHED) from the Office of The Surgeon General (OTSG) indicates that his medical problems were well within the medical retention standards at the time of his separation.
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.
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 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.
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, 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 evidence in this case does not support his contention that there was an error or injustice in his separation from active duty. This is supported by an opinion from the OTSG.
3. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agencies examinations and findings.
4. 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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