APPLICANT REQUESTS: That his retirement for length of service be corrected to a medical retirement.
APPLICANT STATES: After his retirement he was diagnosed as having cancer of his nasal passage. He is a Vietnam veteran and worked with Agent Orange when he was a supply clerk. The VA has determined that his cancer is service connected, and has granted him a disability rating for that condition. However, he believes that it is an injustice that his rating from that agency was reduced to 20 percent in 1995 without any consideration of the residuals of his cancer.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 10 June 1970, was awarded the military occupational specialty (MOS) of unit supply specialist, served in Vietnam, and was promoted to pay grade E-7.
The applicants last two Noncommissioned Officer Evaluation Reports (NCOER) show that he was given an overall potential for promotion and/or service in positions of greater responsibility rating of Among the best, the highest rating possible.
On 31 October 1991 he was honorably retired for length of service in pay grade E-7.
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 applicants ratings on his NCOERs conclusively show that he was physically fit to perform the duties of his grade and MOS at the time of his retirement.
2. Whether or not the applicant had cancer while he was on active duty is not germane in this case. It was not physically unfitting at the time of his discharge.
3. If the VA has assigned the applicant a rating (he did not include his VA records) for his cancer, that action would be in keeping with the prescribed function of that agency; i.e., to provide medical care and monetary compensation for service related medical conditions. Any such action taken by the VA would not imply that the action taken by the Army was in error.
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
ARMY | BCMR | CY2001 | 2001053950C070420
The applicant requests that his medical records be corrected to show he had cancer prior to his retirement and that his retirement for length of service be changed to a medical retirement. He had the cancer prior to his retirement but it was misdiagnosed as hemorrhoids. OTSG opined that the applicant’s rectal carcinoma was most probably present at the time of his retirement physical examination in January 1998.
ARMY | BCMR | CY2010 | 20100007224
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate...
ARMY | BCMR | CY2014 | 20140001806
The VA progress notes, consults, and other medical documents he provided show he was awarded service-connected disability compensation for PTSD, at the rate of 50 percent effective 28 April 2005, and tinnitus, at the rate of 10 percent, also effective 28 April 2005. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. Most if not all of the applicant's medical records during his active duty...
ARMY | BCMR | CY2014 | 20140001100
Because the applicant's physical condition was not medically unfitting for retention at the time of his discharge there was no basis for a medical retirement or disability separation from active duty. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated from active duty. The Army must find that a service member is physically unfit to reasonably...
ARMY | BCMR | CY2014 | 20140018833
Personnel who were physically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were not to be separated because of expiration term of service unless processing for separation because of physical disability was waived. Army Regulation 601-280 (Total Army Retention Program) prescribes procedures to deny reenlistment (through a field commander's bar to reenlistment) to Soldiers whose immediate separation under administrative procedures is not warranted...
ARMY | BCMR | CY2007 | 20070013423
The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his DVA Rating Decisions, dated 9 July 2007 and 27 November 2007; his service medical records (SMRs); and his DVA medical records, in support of his application. The applicant's SMRs show continuous treatment of his LBP and neck pain until his discharge. Although the applicant's LBP condition is well documented in his SMRs, there is no evidence that his military service was interrupted...
ARMY | BCMR | CY2008 | 20080011390
The applicant is currently serving in the U.S. Army Reserve in the rank of sergeant. The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty. The applicant contends that he should have been medically retired; however, the preponderance of evidence shows that his medical conditions did not render him medically unfit to perform his duties...
ARMY | BCMR | CY2013 | 20130017129
On 25 January 2012, an informal PEB found him unfit for his thyroid and major depressive conditions and awarded him a combined 70 percent permanent disability rating (70 percent for depression and 10 percent for post thyroidectomy). The PEB rated his conditions under the VASRD at combined rating of 70 percent and recommended a permanent disability retirement. After his disability retirement the applicant underwent a VA physical examination in which he was evaluated for several medical...
ARMY | BCMR | CY2007 | 20070011342C080213
He was sent to a medical board and was given less than a 30 percent disability rating. The VA, however, is not required by law to determine medical unfitness for further military service. The applicant stated that the VA gave him a 40 percent disability rating for his seizures and a 30 percent rating for his migraine headaches, which the Army did not even consider.
ARMY | BCMR | CY2010 | 20100016457
The applicant requests the findings of her Physical Evaluation Board (PEB) be changed from "fit for duty" to a medical retirement with a disability. There is no evidence that her performance was hindered by any medical condition(s). The applicant contends the findings of her PEB should have been medical retirement with a disability.