APPLICANT REQUESTS: The applicant requests a change in his disability rating.
APPLICANT STATES: That ratable disabilities were disregarded.
EVIDENCE OF RECORD: The applicants military records show:
He was born on 5 June 1956. He completed 18 years of formal education. He enlisted in the Army National Guard on 28 October 1975. He was commissioned a second lieutenant in the Army National Guard on 15 October 1979 and was ordered to active duty on 18 October 1980 for 3 years. His military specialty was 15A (Aviation Officer).
In April 1989, the applicant was diagnosed with nonseminomatous germ cell tumor. In May 1989, he had a right oriectomy. He did well until December 1990 when tests showed evidence of recurrence of testicular cancer.
On 11 April 1991, a Medical Evaluation Board (MEB) completed with diagnoses of nonseminomatous germ cell cancer with teratomatous and embryonal components, now recurrent by rising tumor markers; hypercoagulability state, secondary to chemotherapy; and neutoropenia, secondary to chemotherapy.
On 19 April 1991, the applicant concurred with the MEB findings.
On 2 May 1991, an informal Physical Evaluation Board (PEB) found the applicant unfit for the listed diagnoses and rated him at 100 percent for cancer, with placement on the Temporary Disability Retired List (TDRL).
On 14 May 1991, the applicant concurred with the PEB findings.
On 28 May 1992, a TDRL medical reevaluation was completed.
On 9 June 1992, the applicant concurred with the reevaluation findings.
On 4 May 1994, a TDRL medical reevaluation was completed.
The applicant was found to still be in complete remission with no reports of any adverse symptoms.
On 14 August 1994, medical authorities reviewed a rebuttal to medical findings. The applicant was of the opinion he should remain on the TDRL.
On 26 August 1994, the PEB found the applicant unfit for cancer in remission. Based upon the finding, the PEB recommended separation from the TDRL with severance pay at 10 percent.
On 8 September 1994, the applicant nonconcurred and requested a formal hearing.
On 27 September 1994, a formal PEB found the applicant fit for duty. The applicant concurred.
On 5 January 1995, the PEB upon formal reconsideration altered their 27 September 1994 findings and found the applicant unfit, and recommended separation with severance pay at 10 percent.
On 23 January 1995, the applicant was honorably discharged in pay grade O-3 under the provisions of AR 635-40, for physical disability with severance pay. He received a 10 percent disability rating. He completed 10 years, 8 months and 18 days of creditable active service. His decorations and awards include the Meritorious Service Medal, the Army Commendation Medal and the Army Achievement Medal (1st Oak Leaf Cluster).
On 9 August 1995, the applicant filed for correction of his military records.
In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the U.S. Army Physical Disability Agency (USAPDA). It contains no information, advice or recommendation which would constitute a basis for granting the relief requested.
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.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
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, 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 applicants disability was properly rated in accordance with the VA Schedule for Rating Disabilities. His separation with severance pay was in compliance with law and regulation.
3. The foregoing conclusions are supported by the advisory opinion furnished by the USAPDA.
4. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its rating.
5. Therefore, 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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