APPLICANT REQUESTS: That the honorable discharge she received at the expiration of her term of service (ETS) be corrected to a medical discharge with severance pay or a medical retirement.
APPLICANT STATES: She is currently rated 60 percent disabled and is getting worse.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
She enlisted in the Regular Army on 4 February 1976, was awarded the military occupational specialty of electronic warfare/signal intelligence analyst, and was promoted to pay grade E-5.
On 18 January 1979 she was given a separation physical examination in which she was determined qualified for separation. Accordingly, she was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 1 February 1979.
She accepted assignment to an USAR unit on 26 February 1979, enlisted in the USAR for 3 years in pay grade E-5 on 12 January 1980, and was transferred back to the USAR Control Group on 15 August 1980 due to employment conflicts.
On 12 January 1983 she reenlisted in the USAR Control Group for 3 more years in pay grade E-5. On 3 May 1984 she was given a periodic physical examination in which she was determined to be medically qualified for retention. However, she was given physical profile restrictions for asthma as a result of that examination. She was also found to be 12 pounds overweight and to suffer from allergies at that time.
She completed her enlistment and was honorably discharged on 11 January 1986.
Army Regulation 635-40, in effect at the time provided pertinently that while a member may have medical conditions or physical impairments ratable under the Veterans Administration Schedule for Rating Disabilities, he will not be retired or separated because of those conditions or impairments unless they render him unfit because of physical disability. Further, the continuous performance of duty by a member whose service may soon be terminated for reasons other than physical disability gives rise to a presumption of fitness which may be overcome if the evidence established (a) That the member, in fact, was physically unable to perform the duties of his office, rank, grade, or rating even though he was improperly retained in that office, rank, grade or rating for period of time, or (b) acute, grave, illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the members separation for reasons other than physical disability rendered him unfit for further duty.
Title 10, United States Code, section 1203, provides for the physical disability separation (discharge with severance pay) 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.
The VA is the agency which is responsible for rating medical conditions which are related to service. The VA evaluates a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's latest examinations and findings.
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. There is no evidence that the applicant had any medical problems while she was on active duty. Even if she had, she was found medically qualified for retention at her separation physical examination.
2. The applicants fitness for duty is further reinforced by the fact that she completed her Regular Army enlistment, she served in a USAR unit, she reenlisted twice, and she was again found medically qualified for retention, all of which occurred after her release from active duty.
3. Disabling medical conditions occurring while a member of a reserve component not on active or inactive duty do not qualify a service member for disability retirement or severance pay.
4. The proper agency to handle any problems she is currently experiencing from any service related medical condition is the VA.
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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