APPLICANT REQUESTS: In effect, a medical retirement.

APPLICANT STATES: In effect, that he should have been put on permanent disability list or temporary disability list at the time of his discharge. 

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 27 April 1964.  He completed 12 years of formal education.  On 30 March 1983, he enlisted in the Regular Army for 4 years.  He completed the required training and was awarded military occupational specialty (MOS) 71L10 (Administration Specialist).  The highest grade he achieved was pay grade E-5.

On 28 March 1990, while assigned to a unit in Vicenza, Italy, the applicant was involved in a ski fall which occurred during a field training exercise.  He sustained fracture of the right thumb, sore right shoulder, lower back pain/injury.  

On 30 May 1991, the applicant received a permanent physical profile for chronic back pain.

On 16 November 1992, the applicant was referred to a MOS/ Medical Retention Board (MMRB).  He was diagnosed with mechanical lower back pain, spondylolsis, L5 vertebra, Grade 1 spondylolsthesis L5 vertebra on S1, chronic headaches and sensorineural high frequency hearing loss, mild, left ear.  The MMRB referred the applicant to a Medical Evaluation Board (MEBD).   

On 27 January 1993, the applicant appeared before a MEBD.  He was diagnosed as having mechanical lower back pain; spondylolysis L5 vertebra, Grade 1 spondylolysthesis L-5 vertebra on S1; chronic headaches and sinsorineural high frequency hearing loss, mild left ear.  The MEBD referred the applicant to an informal Physical Evaluation Board (PEB).  On 2 February 1993, the applicant concurred with the MEBD findings and recommendations.

On 23 February 1993, an informal PEB found the applicant fit for continued military service.  On 3 May 1993, after being advised by a military attorney the applicant concurred with the informal PEB’s findings.

On 12 May 1993, the United States Army Physical Evaluation Agency (USAPDA), after careful review, affirmed the informal PEB findings and recommendations and closed the case.

The applicant signed a DA Form 4187 (Personnel Action ) requesting that he be discharged from the service in accordance with Army Regulation 635-200, paragraph 16-8, under the (Early Release Program (VSI) with special separation benefit (SSB)).  On 15 December 1993, his request was approved.  The approval was contingent upon the soldier having at least 5 years of continuous active service.  The applicant was advised of his rights. 

A medical examination found the applicant physically fit for retention.

On 1 August 1994, the applicant was discharged, in pay grade E-5, under the provisions of Army Regulation 635-200, paragraph 16-8 (Early Release Program-Special Separation Benefit), with an honorable discharge.  He received separation pay in the amount of $31,145.58.  He was awarded the Army Achievement Medal, the Good Conduct Medal, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon and the Overseas Service Ribbon.

On 18 August 1995, the Department of Veterans Affairs (VA) awarded the applicant a 40 percent service connected disability rating.

On 30 October 1995, the applicant filed an appeal to this Board for correction of his military records.

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.

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, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The evidence of record shows that the applicant appeared before an informal PEB and he was found physically fit for duty.  The applicant concurred with the determination of the informal PEB and the case was closed. 

3.  The evidence of record also shows that the applicant’s voluntary request for discharge was conducted in accordance with law and regulations applicable at the time.  Since the applicant's medical condition was not medically unfitting for retention at the time of separation, there was no basis for medical retirement or separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  The foregoing conclusion is supported by the advisory opinions furnished by the Physical Disability Agency.

6.  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