APPLICANT REQUESTS: That the honorable discharge he received at the expiration of his term of service (ETS) be corrected to a separation due to medical disqualification, rated disabled.
APPLICANT STATES: That he was hospitalized while on active duty for a benign tumor on his pancreas, splenectomy, and for removal of his gallbladder. He spent 7 weeks in the hospital for those conditions and 6 months on convalescent leave. After his release from active duty, he enlisted in the Army National Guard (ARNG). While in the ARNG, he applied for entry into the Warrant Officer Program, but was told he would require a waiver of a medical disqualification under chapter 2 of Army Regulation 40-501, Physical Standards for Enlistment, Appointment, and Induction, to enter on active duty for that program. That waiver was required because of the surgery he underwent while on active duty. In addition, the VA has now awarded him a 50 percent disability rating.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He enlisted in the Regular Army on 28 May 1980 in pay grade E-3, was promoted to pay grade E-5, and was reduced to pay grade E-4. He was awarded the military occupational specialty of medical specialist.
On 6 May 1982 the applicant was admitted to a military hospital for gallstones. At that time the applicant reported a 10-year history of intermittent right upper quadrant abdominal pain associated with fatty food intolerance.
On 7 May 1982 the applicant underwent surgery for removal of his gallbladder and for partial pancreatic resection. On 23 May 1982 he underwent exploratory surgery, which included drainage of his lesser sac abscess, distal pancreatectomy, splenectomy, and thoracentesis (surgical puncture of the chest wall for aspiration of fluids). On 9 June 1982 he was placed on 30 days of convalescence leave and, on 9 July 1982, he was discharged from the hospital on a regular diet and given 2-week physical profile limitations.
The applicant completed his enlistment without further incident and was honorably released from active duty at his ETS on 27 May 1983 and transferred to an Army Reserve unit.
On 4 October 1989 the applicant was medically evaluated by a Military Entrance Processing Station (MEPS). The MEPS physician stated that it appeared that the tumor the applicant had removed in the Army was malignant and, despite his being asymptomatic for 7 years, he was technically disqualified under chapter 2 of Army Regulation 40-501.
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 the percentage of disability to be awarded. This regulation also provided in pertinent part 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.
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.
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 fitness 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. The policy under which the VA operates permits it to evaluate a veteran during the remainder of the veterans life time. The amount of the rating depends upon the degree of disability on the date of evaluation. Thus, a rating may fluctuate in either direction at any point in time and could range from a zero percent disability award to a 100 percent disability award.
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. The applicant was never determined to be medically unfit and, therefore, was not referred to a medical evaluation board. Absent this referral, the applicant was not eligible for separation by reason of physical unfitness.
2. Although the applicant underwent surgery while he was on active duty, he was returned to duty following his two operations and convalescent leave.
3. The MEPS determined that the applicant was medically disqualified under procurement standards, not retention standards. In order to have been eligible for separation due to medical unfitness while on active duty, he would have had to have been found medically unfit to perform the duties of his office, rank, grade or rating under the retention standards of Army Regulation 40-501.
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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