APPLICANT REQUESTS: In effect, that her medical discharge be corrected to a medical retirement.
APPLICANT STATES: That her rights as a soldier and a female have been violated by the military medical system. The military hospital which conducted her medical evaluation board (MEB) was staffed with physicians which were not properly trained to identify disabilities unique to women.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
She enlisted in the Regular Army on 24 March 1987 at the age of 19, was awarded the military occupational specialties of supply specialist and legal specialist, and was promoted to pay grade E-5.
On 22 September 1993 an MEB convened and determined that the applicant did not meet medical retention standards due to exercise induced asthma, perennial allergic rhinitis, and migraine headaches. The MEB referred the applicant to a physical evaluation board (PEB).
In preparation for her PEB, the applicants supervisor, the acting chief legal NCO, a sergeant first class, submitted a letter of evaluation on the applicant. In that letter he stated that the applicant had been a hard working NCO since her assignment and had earned the respect of her peers and superiors with her demonstrated abilities. Even with her medical problems she had performed in an outstanding manner and had obtained excellent results. However, her many medical appointments resulted in significant time away from her duties, resulting in her inability to adequately perform her military duties.
On 6 October 1993 an informal PEB was convened and determined that the applicant was physically unfit due to exercise inducted asthma, as evidenced by pulmonary function studies that varied from moderate to normal, and requiring constant medications to control. The PEB recommended that she be rated 10 percent disabled for that condition. The PEB also determined that she was unfit due to migraine headaches with frequent occurrence and not responsive to multiple medications, and recommended that she be rated 10 percent disabled for that condition, giving her a combined rating of 20 percent disabled. The applicant
non-concurred with that finding and demanded a formal hearing.
On 26 October 1993 a formal PEB was convened which made exactly the same findings and recommendation as that of the informal PEB. The applicant again non-concurred with those findings and that recommendation and submitted a rebuttal in which she argued that her ratings did not adequately befit her disabilities, that she had not been rated for her flat feet, and that her disabilities were not considered combat related even though she spent 7 months in Saudi Arabia. In support of her rebuttal she submitted physician statements concerning her disabilities, one of which stated that the applicant reported that her headaches began at approximately the age of 19, and She has had numerous episodes of lightheadedness and (fainting) throughout her lifetime. The PEB rejected the applicants rebuttal and forwarded her rebuttal to the Physical Disability Agency (PDA).
On 10 November 1993 the PDA convened and affirmed the findings and recommendation of the PEB and ordered that the applicant be discharged with severance pay, rated 20 percent disabled.
Accordingly, the applicant was honorably discharged due to physical unfitness with $19,614.00 in severance pay on 3 January 1994.
Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board to determine whether they are unfit to be retained in the Army and, if so, to determine the percentage of disability to be awarded. This regulation also provides that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.
Title 10, United States Code, section 1203, provides for the physical disability separation (discharge) of a member who has less than 20 years service and a disability rated at less than 30 percent.
Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
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. The applicant has not submitted any evidence that her physically unfitting conditions were not properly rated by the Army. To the contrary, a 20 percent disability rating appears to properly address her disabilities when viewed in conjunction with her supervisors statement that she was still performing her duties to a high degree of efficiency, that only her numerous absences from the office for doctors appointments rendered her unable to adequately perform her duties.
2. The applicants flat feet were not determined to be physically unfitting and, therefore, were properly not rated.
3. The applicants contention that medical issues unique to women were not taken into consideration when she was rated is not supported by her medical records.
4. As such, the applicants contention that she should have received a more enhanced disability rating is not justified.
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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