APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.     

APPLICANT STATES:  That when he was discharged from the Army on 12 March 1993, he received a 30 percent service connected disability rating from the VA.

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

The applicant entered the Army on 23 September 1981 and served on continuous active duty until his discharge in 1993.  He served three tours in Germany, served in Saudi Arabia in support of Operation Desert Storm, and attained the rank of Staff Sergeant.

On 20 May 1983 the applicant was treated for an injury to his right ankle.

On 12 May 1987 the applicant was treated for left knee pain.
A 22 May 1987 operative report indicates that the applicant had an operative arthroscopy and medial menisectomy to his left knee.

On 8 September 1987 the applicant was treated for left knee pain.  On 5 November 1987 he suffered a twisting injury to his left knee during a ball game. 

On 26 April 1988 the applicant was treated for a twisted right ankle.

A 4 May 1988 medical record report shows that the applicant had an operation to correct a left nasal obstruction which was secondary to a deviated nasal septum.

The applicant was referred to surgery on 11 June 1988 for removal of hemorrhoid tags, however, they were found to be asymptomatic and surgery determined unnecessary.

On 28 December 1988 the applicant was treated for a left ankle sprain.

A clinical record of 3 March 1992 shows that the applicant was treated for pain to his left foot.
On 21 October 1992 the applicant was examined to determine if he was physically fit to participate in a weight control/physical exercise program.  His overweight condition was determined to be not due to a medical condition and it was recommended that he continue in a weight control program.

On 13 November 1992 he was treated for lower back pain.

On 5 March 1993 the applicant’s separation authority approved a recommendation to discharge the applicant from the Army under the provisions of Army Regulation 635-200, paragraph 5-15 for his failure to meet Army body composition/weight control standards.  The applicant was discharged on 12 March 1993.  He had 11 years, 5 months, and 18 days of active service.

A VA rating decision of 24 May 1993 indicates that the applicant underwent arthroscopic surgery of the left knee, and an operation to repair a blunt trauma injury which resulted in a deviated septum, the injury having occurred when the applicant was a child.  The applicant was also seen during his military service for complaints of shoulder pain, ankle pain, and back pain, and he complained of hemorrhoids during his service.  He failed to appear for his scheduled VA rating examination, and was awarded a zero percent service connected disability rating for postoperative left knee.  

A VA rating decision of 26 September 1995 indicates that the applicant was awarded a 10 percent service connected disability for low back pain with lumbar diskectomy, a 
10 percent disability for post operative left knee, a 
10 percent disability for a deviated nasal septum, and zero percent disability for hemorrhoids, right ankle sprain, and left ankle sprain.  Ratings for the above disabilities were first awarded the applicant in 1994. 

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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.

In the processing of this case an advisory opinion was obtained from the medical advisor to the DA Military Review Boards Agency (COPY ATTACHED).  That official opined that the applicant’s surgery to his knee did not interfere with his ability to perform his duties, that his deviated nasal septum was not a disqualifying condition, and there was no evidence of a ruptured disc nor did he have a disqualifying back pain at the time of his separation.  That official stated that his career was interrupted by conditions not of a disqualifying nature, and in effect, recommended that his request be denied.

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.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.  The foregoing is supported by an opinion from the DA Military Review Boards Agency medical advisor.

2.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  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.

4.  The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

7.  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.

8.  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