2. The applicant requests, in effect, that the reason for his separation be changed to physical unfitness.
3. He states that he was pending a medical evaluation board for his migraine headaches. However, his unit initiated and expedited administrative separation action against him to prevent his medical separation. Now he cannot collect unemployment insurance payments because of the narrative reason for his separation which is shown on his DD Form 214, Certificate of Release or Discharge from Active Duty.
4. The applicants military records were not provided to the Board. Information contained herein was obtained from the applicants VA medical records.
5. He enlisted in the Regular Army on 30 October 1992, was awarded the military occupational specialty of personnel administration specialist, and was promoted to pay grade
E-4.
6. On 10 August 1995 he was honorably released from active duty by reason of non-retention on active duty under the provisions of Army Regulation 635-200, paragraph 16-5B. He had 2 years, 9 months and 11 days of active duty.
7. Army Regulation 635-200, paragraph 16-5B, provides for the separation of soldiers who perceive that they will be unable to overcome a local bar to reenlistment. However, a soldier must request separation under this provision.
8. In the processing of this case advisory opinions were obtained from the Office of The Surgeon General (OTSG) and the Physical Disability Agency (PDA). The OTSG stated that the applicants medical records show that he was seen on multiple occasions by physicians at emergency rooms and outpatient clinics and was diagnosed as suffering from migraine headaches. He had been prescribed a number of medications appropriate for migraine therapy to no avail. By late July 1995 he required almost daily visits to the emergency room for refractory migraines. The OTSG opines that the applicant did not meet medical retention standards while he was on active duty. The PDA stated that by giving reasonable doubt to the applicant, a physical evaluation board (PEB) would have found him physically unfit and rated him 10 percent disabled. To be given a higher rating, the applicant would have had to experience prostrating migraine attacks averaging at least once a month. A prostrating attack is one in which no work can be accomplished and immediate medical care must be provided. The PDA recommends that the applicants records be corrected to show that he was found physically unfit due to migraine headaches, awarded 10 percent compensation under VA Schedule for Rating Disabilities code 8100, and discharged with severance pay.
9. Records obtained from the VA show that he was awarded a 10 percent disability rating from that department.
CONCLUSIONS:
1. Contrary to the applicants contention, he had requested separation, not his unit.
2. However, his medical record establishes that he suffered from migraine headaches, the OTSG has determined that those headaches were medically disqualifying, and the PDA has determined that he would have been determined physically unfit by a PEB and opines that he would have been awarded a 10 percent disability rating.
3. In retrospect, the applicant should have been separated for physical disability. The fact that he was not has worked an injustice upon him.
4. In view of the foregoing, the applicants records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by showing that the action separating the individual concerned from active duty on 10 August 1995 is void and of no force or effect;
b. by showing that on 10 August 1995 he was physically unfit to perform the duties of his office, grade, rank or rating by reason of migraine headaches for a 10 percent disability rating under the VA Schedule for Rating Disabilities; that the disabilities were permanent; that it was incurred while he was entitled to receive basic pay as a member of a regular component on active duty; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was incurred in line of duty; that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war; and
c. by showing that he was relieved from active duty on 10 August 1995 by reason of physical disability, rated 10 percent disabled in accordance with the VA Schedule for Rating Disabilities and was discharged from the Army with entitlement to severance pay in the highest grade satisfactorily held under the provisions of title 10, United States Code, sections 1203 and 1212.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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