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 MOSs 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 MOSs, 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 applicants 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 MOSs, duties of a foreman maintaining Government buildings. The applicants 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 members 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 applicants VA rating of 10 percent disabled actually supports the Armys actions in this case. A 10 percent disability does not warrant a medical retirement from the Army.
3. While it is regrettable that the applicants 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 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
ARMY | BCMR | CY1995 | 9506254C070209
APPLICANT STATES: That within a year of his discharge from the Army, he was evaluated at 60 percent by the VA. A review of his entire military records will show that he should have been given a medical retirement after all of his exceptional military service. His physical profile was shown as 111221. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.
ARMY | BCMR | CY2004 | 20040004894C070208
Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Therefore, there is insufficient evidence to overcome the presumption of fitness rule in his case. Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 August 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21...
ARMY | BCMR | CY1996 | 9608045C070209
APPLICANT STATES: That he suffered from back and left shoulder conditions which warranted his being medically boarded and retired. An informal physical evaluation board (PEB) was then convened which found the applicant physically unfit due to knee impairment, moderate, and recommended he be separated with severance pay, rated 20 percent disabled. The applicant reenlisted, was awarded a second MOS, was enlisted in the PRARNG, was appointed as a warrant officer, and was found medically fit...
ARMY | BCMR | CY2014 | 20140021365
c. Noble Army Hospital, Physical Exam Clinic, Fort McClellan, AL, letter, dated 1 February 1988, subject: Clearance for Over40 PT, addressed to the applicant to notify him that he was cleared for participation in the PT program (for Soldiers who are over 40 years of age), effective 19 August 1987. d. VA Rating Decision, dated 10 September 1994, that shows, in pertinent part, the evidence reviewed was the applicant's Service Medical Records for the period 30 April 1973 through 30 November...
ARMY | BCMR | CY2008 | 20080018505
As such, the PEB did not rate those conditions. Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individuals physical disability is not stable and he or she may recover and be fit for duty, or the individuals disability is not stable and the degree of severity may change within the next 5 years so as to change the disability...
ARMY | BCMR | CY2001 | 2001064272C070421
The evidence of record shows that the applicant was physically fit to perform his duties at the time of his separation from active duty. Although he was being treated for a back condition at the time he enlisted in the ARNG, he had indicated that he believed that he was medically qualified to perform satisfactory military service. He requested discharge from the ARNG two years later but his request did not indicate that he believed himself to be physically unfit for duty.
ARMY | BCMR | CY1995 | 9506854C070209
EVIDENCE OF RECORD: The applicant's military records show: He enlisted in the ARNG with no prior service on 14 January 1974, entered on his initial active duty for training on 4 June 1974, was awarded the military occupational specialty of supply specialist, and was honorably released from active duty and returned to his ARNG unit on 5 December 1974. The PEB recommended that the applicant be discharged with severance pay, rated 10 percent disabled, contingent on the applicants unfitting...
AF | PDBR | CY2010 | PD2010-00264
SUMMARY OF CASE : This covered individual (CI) was an active duty SSGT/E-5 (4A151, Medical Material Journeyman) medically separated from the Air Force in 2006 after more than eight years of service. An Informal PEB determined she was unfit secondary to her bilateral hip condition with a disability rating of 0% for each hip. The VA rated each hip separately under 5010-5013 with 10% each hip for ROM limited by pain.
ARMY | BCMR | CY2014 | 20140018403
The applicant requests an increase in the disability rating she received by the Physical Evaluation Board (PEB) for a back injury incurred while she was on active duty and that she receive a rating for Traumatic Brain Injury (TBI). The board acknowledged that she has cognitive impairment consistent with TBI, but the condition was not found unfitting by the original PEB and because TBI does not arise out of either condition found unfitting (PTSD and cervical spine disease), the board could...
ARMY | BCMR | CY1995 | 9508945C070209
APPLICANT REQUESTS: In effect, an increase in his physical disability rating. The PEB found the applicant physically unfit for further military service and recommended that he be placed on Temporary Disability Retired List (TDRL) at 30 percent. The Commander, USA Physical Disability Agency, in a comment (COPY ATTACHED) to this Board, found no evidence of error or injustice and recommended that the records not be changed.