APPLICANT That his military records be corrected to show that he was disabled due to his exposure to Agent Orange in Vietnam.
APPLICANT STATES: That he should be awarded a disability for Agent Orange in accordance with the new laws governing that condition.
In support of his application he submits a VA rating in which he was granted a disability rating for physical problems which are considered by VA to be service related, as a result of his exposure to Agent Orange in Vietnam.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the Regular Army on 25 April 1957 and was awarded the military occupational specialties of teletype repairman helper, electronic communications maintenance chief, and electronic communication operations chief. He served continuously through reenlistments and extensions, was promoted to pay grade E-7, and served in Korea, Britain, Greenland, France, Germany and Vietnam (he served two tours each in Germany and Vietnam). He was honorably retired for years of service on 30 April 1982.
On 27 February 1973 a message change to Army Regulation
635-40 was dispatched which stated [W]hile 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 and 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 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. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agencys 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 indication that the applicant could not perform his military duties due to a physical disability. To the contrary, he honorably completed over 20 years of service, was promoted to senior noncommissioned officer, and was retired for years of service.
2. The fact that the VA granted him a service connected disability rating does not necessarily demonstrate any error or injustice by the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its reason or authority for separation.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
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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