APPLICANT REQUESTS: That he be medically retired.
APPLICANT STATES: That he was not afforded the proper appeal process for his medical evaluation board (MEB) and physical evaluation board (PEB) because he was serving on active duty under title 32, U.S. Code (State) and not title 10, U.S. Code (Federal). Both the MEB and PEB findings that he should be returned to duty were obviously flawed when those boards stated, in direct contradiction with its written findings, that he could not be returned to a duty status.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He entered on full time training duty (FTTD) under the Active Guard and Reserve (AGR) program in pay grade E-6 on 19 March 1986 under the authority of title 32, U.S. Code. He was voluntarily released from FTTD on 15 March 1991, still in pay grade E-6. His military occupational specialties are personnel administration specialist and administration specialist.
On 11 November 1991, almost 8 months after his release from FTTD, he submitted a request for medical retirement. In that request he stated that following a hernia repair (operation) which was performed while he was on FTTD, he was treated for a nonexistent prostate infection for over 2 years. He alleged that the medications he was prescribed for that infection led to him developing an ulcer and esophageal disfunction. It wasnt until August 1990 that his condition was properly diagnosed. His misdiagnosed medical condition caused him to be noncompetitive in the AGR program, and led him to submit his request for voluntary release from FTTD to enable him to obtain competent medical treatment. The applicant continues that he decided that he should resolve his medical problems before his release from FTTD and submitted to a separation physical examination. The examination resulted in a finding of medical qualification for retention. He believes that he was not afforded an MEB because a military physicians malpractice caused his problems.
On 3 March 1993, while the applicant was a drilling guardsman not on active duty, he was the subject of an MEB. The MEB diagnosed him as suffering from Barretts esophagus (a physiological replacement of the cell lining of the esophagus), chronic nonbacterial prostatis (inflammation of the prostate), and seasonal rhinitis (inflammation of mucous membrane of the nose). Nonetheless, the MEB found him able to work without restrictions and recommended that he be returned to duty.
The applicant disagreed with those findings and recommendation and submitted a rebuttal in his own behalf.
On 16 June 1993 an informal PEB was convened solely as a result of the applicants rebuttal of the MEB. The informal PEB also determined that the applicant was fit for duty. The applicant disagreed with those findings and recommendation and demanded a formal hearing.
Accordingly, on 19 July 1993 a formal PEB was convened and the applicant was again found fit for duty. The applicant unsuccessfully appealed the formal PEBs findings and recommendation.
Records provided by the VA indicate that the applicant has been awarded compensation for medical conditions which that agency has determined to be related to military service.
Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
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 individuals 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.
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Chief Surgeon, Army National Guard. The Chief Surgeon stated that he does not find any reason to reopen this case based on the information in the packet.
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 never determined to be either medically disqualified for retention or physically unfit to perform the duties of his grade. Absent these findings, the applicant was not eligible for separation by reason of physical unfitness.
2. There is no evidence which shows that the applicant was treated differently than a soldier serving under title 10, U.S. Code. To the contrary, his case was considered by both an informal and formal PEB.
3. 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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