APPLICANT REQUESTS: In effect, that he be medically retired.
APPLICANT STATES: In June 1987 he broke his back while performing annual training with his Army National Guard (ARNG) unit. However, a line of duty investigation was never conducted on his injury and he was never given a fitness for duty evaluation. Now his ARNG chain of command has told him that they do not have any documentation which shows that he broke his back on duty and, therefore, the ARNG is not responsible for compensating him for that injury. The applicant states that contrary to what the ARNG has told him, he has copies of his medical records which show that he reported his broken back when it occurred. In addition, his sleeping disorder and possible tuberculosis were never investigated.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He enlisted in the Regular Marine Corps on 31 March 1975, was promoted to pay grade E-3, was awarded the military occupational specialty (MOS) of radar repairman, and received a general discharge on 14 December 1976 for unknown reasons. He had completed 1 year, 8 months and 13 days of his enlistment.
He had no further military service until his enlistment in the ARNG on 15 January 1987. He was awarded the MOSs of personnel and administrative specialist and motor transport operator and was promoted to pay grade E-4.
On 8 June 1987, while performing annual training with his ARNG unit, the applicant felt a slight tingle in his lower side around his rib cage which began when he was moving some heavy objects. He was examined at that time and diagnosed as having a muscle strain. He returned to sick call 2 days later, stating that he was experiencing a pain just below his belt and it hurt to do any twisting or bending motions. He was then diagnosed as having a lumbar strain or sprain and was given temporary physical profile limitations. A line of duty investigation was initiated and approved on that incident.
On 7 April 1991 the applicant had a quadrennial physical examination. Although a history of back pain was noted during that examination, the applicant was determined to be medically qualified for retention without any profile limitations.
The applicant continued to serve in ARNG units until his honorable discharge on 1 July 1995. His discharge was for the convenience of the Government.
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 (PEB) 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 PEB 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 performing active or inactive (weekend drill) duty.
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 reported having pain in his back while on annual training in 1987, there is no indication that any medical problems resulting from that incident ever became medically disqualifying or physically unfitting.
2. To the contrary, he was determined medically qualified without any profile restrictions 4 years after that incident, and served as a unit member for a total of 8 years after that incident. Those facts clearly establish his ability to perform his duties with whatever medical condition he might have had during that timeframe, whether they were service related or not.
3. With all the available evidence showing that he was physically fit, he did not meet the statutory requirements for medical retirement.
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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