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ARMY | BCMR | CY1995 | 9509653C070209
Original file (9509653C070209.TXT) Auto-classification: Denied
APPLICANT REQUESTS:  That his retirement for years of service be corrected to a medical retirement.

APPLICANT STATES:  When he was retired, he was unable to perform the duties of his rank and military occupational specialty (MOS).  As such, he met the criteria of law to be medically retired.

In support of his application he submits a VA rating decision dated 29 June 1982, within a year of his retirement, which shows that he was awarded a 10 percent disability for pulmonary disease with a history of tuberculosis.  He was also assigned non-compensatory service connection (the conditions were found to be less than 10 percent disabling) for a hearing condition, herpes, prostatitis, hemorrhoids, a scar on the back of his head, pterygium of his eye (a wing-like structure which is immovably united to the cornea), bursitis of his left shoulder, and a right and left knee condition.  He was denied service connection (there was no evidence that the conditions existed, or that they were incurred or aggravated while he was in the Army) for coccygeal (pelvic bone) pain, indigestion, scoliosis of his lumbar spine, and arthritis of his cervical spine.  He also submits medical records which show that his medical condition has progressively deteriorated in the years following his retirement.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

He enlisted in the Army National Guard on 15 February 1954, served through reenlistments, being promoted to pay grade 
E-4, and was ordered to active duty as a guardsman on 1 October 1961.  He reenlisted in the Regular Army on 27 July 1962, was promoted to pay grade E-6, and was awarded the primary MOS of chemical operations specialist and the secondary MOS’s of correctional specialist and military policeman.

On 20 March 1980 the applicant submitted a request to be reclassified from his primary MOS of chemical operations specialist to one of his secondary MOS’s, that of correctional specialist.  In that request he stated that “Although I cannot perform duties in my primary MOS worldwide, due to my physical profile, I feel that I can perform duties in my secondary MOS, [corrections specialist], worldwide, despite my profile.”  In that request he submitted a physical profile which showed that he had a severe, high frequency hearing loss, and was restricted from exposure to noise without the use of adequate, properly fitted hearing protection.  On 7 May 1980 that request was approved.

The applicant’s Senior Enlisted Evaluation Reports (SEER) for the period ending April 1979 rated him with a score of 105 out of a possible 125.  During that rating period he had been performing duties in his primary MOS of chemical specialist.  His next SEER for the period ending April 1980 rated him with a perfect score of 125 out of 125 possible.  During that rating period he had been performing duties outside his MOS’s, duties of a foreman maintaining Government buildings.  The applicant’s last SEER for the period ending April 1981 also rated him with a perfect score of 125.  During that rating period he had been performing duties in his secondary MOS of military policeman.

On 31 December 1981 he was honorably retired for years of service in pay grade E-6.

On 27 February 1973 a message change to Army Regulation 
635-40 was issued.  That message 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.”  That message also stated that “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 member’s separation for reasons other than physical disability rendered him unfit for further duty.”

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 individual's 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 applicant was reclassified into an MOS for which he received maximum rating scores.  As such, he was physically fit at the time of his retirement, despite any medical conditions he may have had at that time.

2.  The applicant’s VA rating of 10 percent disabled actually supports the Army’s actions in this case.  A 10 percent disability does not warrant a medical retirement from the Army.

3.  While it is regrettable that the applicant’s medical condition has deteriorated since his retirement, rating such deterioration is the responsibility of the VA, not the Army.

4.  In view of the foregoing, there is no basis for granting the applicant’s 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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