APPLICANT REQUESTS: That he be medically retired, with disability compensation, from the USAR.
APPLICANT STATES: That he had over 17 years of qualifying service for retired pay and should have received a medical retirement. When he consented to his separation, he was taking medications which clouded his judgment and he had been told by his commander that he did not have any other recourse.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
On 24 February 1992, while serving as a master sergeant assigned to a USAR unit not on active duty, the applicant was determined medically disqualified for retention due to a herniation of his nucleus pulposa, a condition caused by an injury he incurred on his civilian job and for which he is receiving a Social Security disability pension.
The applicant was notified that since he was determined to be medically disqualified, he must elect to either be discharged or to be transferred to the USAR Control Group (Retired), unless he requested and was granted a waiver of his medical disqualification. He elected to be discharged.
Accordingly, on 6 May 1992 the applicant was honorably discharged.
Army Regulation 135-178, paragraph 12-1, states that a reservist who is determined to be medically disqualified from a condition which is not service connected must elect to either be discharged or to be transferred to the USAR Control Group (Retired), unless the reservist requests and is granted a waiver of his or her medical disqualification.
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 in line of duty while performing active or inactive (weekend drills) 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. The applicant was disabled due to an accident which occurred on his civilian job. Therefore, he did not meet the statutory criteria for a medical retirement from the Army and was required to be processed for separation administratively.
2. 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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