APPLICANT REQUESTS: That the honorable discharge he received with Voluntary Separation Incentive (VSI) payment be corrected to a medical retirement.
APPLICANT STATES: He was undergoing medical evaluation and treatment for several problems while he was on active duty. He had been incapacitated from performing his duties on several occasions due to those conditions, and was on physical profile restrictions at the time of his separation. When he told his military physician about his pending discharge, his physician told him that he should go to the VA for continued medical care and a disability rating. The applicant contends that he should have been referred to a medical board and medically retired.
In support of his request he submits his VA rating decision in which he was awarded a 30 percent combined rating,
10 percent for lumbar spine strain, 10 percent for right shoulder strain, and 10 percent for frequent headaches. He was denied service connected disability compensation for several other conditions he claimed that he suffered from as a result of his military service.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He reenlisted in the Regular Army on 8 September 1981 with 4 years and 2 days of prior active service, and 1 year, 7 months and 13 days of prior reserve service. He was awarded the military occupational specialties of infantryman and Bradley Fighting Vehicle Systems mechanic, was promoted to pay grade E-6, and was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 20 September 1992, at his own request, with an unknown amount of VSI payment.
Prior to the applicants separation he was seen on 17 April 1992 for a 9-year history of back pain. On 26 May 1992 he was given a temporary physical profile for lower back pain which was scheduled to automatically expire on 26 August 1992.
On 21 August 1992 the applicant was given a separation physical examination. He was found qualified for separation with no physical profile restrictions at that time.
Army Regulation 635-40, in effect at the time provided pertinently that while 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. Further, 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 treated for lower back pain while he was on active duty and was given a temporary physical profile for that condition.
2. However, he was never determined to be unfit to perform the duties of his grade and MOS. To the contrary, he was determined medically qualified for retention without any profile restrictions immediately preceding his separation.
3. Since the applicant's medical condition was not physically unfitting at the time of his separation, there was no basis to consider him for medical retirement or separation.
4. The rating awarded to the applicant by the VA does not indicate that he was physically unfit under Army standards. Actually, the assignment of minimum compensable VA ratings (10 percent) for each of the applicants three rated medical conditions supports the Armys finding of physical fitness in his case. Any one single medical condition, if more than one exists, must be found physically unfitting in and of itself to be rated by the Army.
5. 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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