APPLICANT REQUESTS: That her discharge due to parenthood be corrected to a medical retirement.
APPLICANT STATES: That she was discharged due to her failure to provide an adequate family care plan. At the time of her discharge, she was receiving ongoing medical treatment for several conditions which warranted her being medically retired.
In support of her application she submits a VA rating sheet which shows she was awarded a 20 percent disability rating for spinal disc condition; 10 percent for knee condition, left lower; 10 percent for back strain; 10 percent for traumatic brain disease; and 10 percent for Post-traumatic Stress Disorder. She was also given zero percent ratings for four other medical problems.
EVIDENCE OF RECORD: The applicant's military records were not provided to the Board. The information contained herein was obtained from the applicants medical records.
She enlisted in the Regular Army on 7 November 1983, was awarded the military occupational specialty of administrative specialist, and was promoted to pay grade E-5.
On 24 March 1994 the applicant was given a physical examination. The reason given for the examination was the applicants pending involuntary separation due to parenthood. In the SF 93, Report of Medical History, the applicant stated that she had numerous medical problems and attached a 9-page addendum to that form giving a chronological history of her problems and the treatment she had received for those problems.
The applicants records do not contain the second page of the applicants SF 88, Report of Medical Examination, which would show the results of the physical. However, it must be presumed that the applicant was determined medically qualified for retention since her separation processing continued unabated.
On 23 June 1994 the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-8, parenthood. She had 10 years, 7 months and 17 days of continuous active service and received $9,624.06 in separation pay.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-8 of that regulation prescribes the procedures for involuntary separation of soldiers because of an inability to perform prescribed duties, repeated absences, or nonavailability for worldwide assignment as a result of parenthood.
Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
Army Regulation 635-40, paragraph 2-2b, as amended, provides 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, rendered the member unfit.
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.
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 unfitness 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.
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 applicants rating by the VA does not indicate that the Army was in error by not medically retiring her or otherwise making disposition of her case through medical channels.
2. The fact that the VA, operating under its own laws and regulations, has awarded the applicant a rating is only indicative of the differences between the two agencies.
3. Apparently, none of her medical conditions were found to be either medically disqualifying or physically unfitting during her separation physical examination. She has not submitted any evidence which would show that her physical examination was flawed, that her medical conditions were actually physically unfitting.
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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