APPLICANT REQUESTS: That his discharge with Special Separation Benefits (SSB) be voided and he be restored to active duty in order for him to undergo a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) examination.
APPLICANT STATES: During his separation physical examination he was diagnosed as having nephrotic syndrome. The Army hospital which had conducted the examination recommended that he be retained on active duty to be medically boarded and he signed a consent affidavit expressing his willingness to remain on active duty. However, he was diagnosed with his nephrotic condition on his scheduled date of separation and his consent affidavit did not reach the transition point until the day after his discharge. He was then told that he could not be extended on active duty because he had already been discharged.
In support of his application he submits a copy of a letter from an Army hospital recommending that he be retained beyond his scheduled date of discharge based on his (then) in progress evaluation by the hospitals nephrology department, dated the day of his scheduled separation. The hospital recommended that he be extended for 30 days.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army with no prior service on 15 August 1986. He was awarded the military occupational specialty of power generation equipment repairer and was promoted to pay grade E-4.
On 31 August 1994 he was honorably released from active duty at his own request with an SSB payment of $18,558.72 and transferred to an Army Reserve unit. He had 8 years and 16 days of active duty.
Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individuals physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty. The fact that the individual has a medically disqualifying condition does not mandate the persons separation from the service. Fitness for duty, within the perimeters of the individuals grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.
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 while performing active or inactive (weekend drill) duty.
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Office of The Surgeon General (OTSG). The OTSG stated that the applicants nephrotic condition was medically disqualifying and recommended approval of the applicants request.
Also obtained was an advisory opinion (COPY ATTACHED) from the Physical Disability Agency (PDA). The PDA stated that while the applicant had been diagnosed as having nephrotic syndrome, that condition did not require any immediate treatment or acute care, and would have only been monitored for changes. Since the applicants nephrotic syndrome did not terminate his military career and since it did not cause him to be unable to perform his military duties, a PEB would have found the applicant fit for duty, had he had been retained on active duty for processing through medical channels. The PDA recommends that the applicants military records not be changed.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, advisory opinions and applicable law and regulations, it is concluded:
1. Although the OTSG opines that the applicants nephrotic syndrome was medically disqualifying, there is no indication that the nephrotic condition ever became physically unfitting. His continued performance of duty up to the date of his separation supports this conclusion.
2. Since he was physically fit, he did not meet the statutory requirements for a medical retirement.
3. Although the applicant should have been retained on active duty for continued medical evaluation, since his nephrotic condition was not physically unfitting, that error, while regretted, could not have resulted in his medical retirement. As such, there is no reason to reinstate the applicant to active duty.
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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