APPLICANT REQUESTS:  In effect, the applicant requests physical disability separation or retirement.  She also requests that the military occupational specialty (MOS) of 84B (Still Photographic Specialist), and completion of Primary Leadership Course (PLC) 301 be added to her DD Form 214 (Certificate of Release or Discharge from Active Duty). NOTE:  The additions of this information to her DD Form 214 have been administratively accomplished.   

APPLICANT STATES:  That she did not have the opportunity to fully pursue a medical discharge for her service-aggravated conditions because of the start of Army’s downsizing prior to obtaining all medical evidence that she had medical problems, other than the fibrocystic breast disease condition that has existed since 1988. 

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

The applicant entered the Army on 22 March 1977 and was on continuous active duty until her discharge in 1992.

The applicant’s medical records indicate that she was treated for numerous problems during her 15 year career, to include a toe injury, problems with discs in her spine, (mild degenerative disc disease), the fibrocystic breast disease condition she mentions in her application, arthritis in her left wrist, bursitis in her left shoulder, injury to her left elbow, headaches, problems with her left knee, and cervical spondylosis with compression of the spinal cord,  among other conditions.

The applicant’s evaluation reports from 1978 until her discharge indicates that she passed all of the Army’s physical fitness tests during her career.  She received high marks by her rating officials for her physical fitness and endurance.  These last few reports (from 1988-1992) indicate that the applicant actively participated in sports, that she was mentally and physically tough, and that she had the endurance and stamina to go the distance.

The applicant was discharged on 30 July 1991 at the Presidio of San Francisco, under the provisions of Army Regulation 635-200, paragraph 16-8.  The narrative reason for her separation was the FY 92 enlisted voluntary transition program.  She had 15 years, 4 months, and 9 days of active service, and received a special separation benefit (SSB) payment of $52,354.44.  The report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of  medical history that the applicant furnished for the examination, she lists various medical problems, past and present, and stated that she was in fair health.

On 12 May 1994 the VA awarded the applicant a service connected disability rating of 40 percent for a cervical spine disability, 10 percent for right elbow, 10 percent for left shoulder, 10 percent for left wrist, 20 percent for lumbar disc disease; and zero percent for left little finger fracture, headaches, and right little toe fracture.  The VA indicated that that agency anticipated improvement in several conditions and for that reason had established future examination controls to review the status of her disability in the future. 

Army Regulation 635-200 provides the policy and procedures for separation of enlisted personnel.  Paragraph 16-8 of that regulation provides for the early separation of soldiers due to reduction in force, strength limitations, or budgetary constraints, and authorizes voluntary and involuntary early separation, to be implemented by the Total Army Personnel Command (PERSCOM) with that command issuing separation instructions pertaining to a specific class or category of soldiers.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary  release from active duty for specific categories of soldiers with monetary incentives authorized.  One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service.

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.

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 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.


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’s separation was the result of her voluntary agreement to be released from active duty prior to her scheduled separation date as part of the Army’s voluntary early transition program.

2.  The applicant was on active duty from 1977 to 1992.  Although the she had numerous medical problems throughout her career, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  The Board notes that she was able to complete and pass the Army’s physical fitness tests throughout her 15 year career and participate in sports.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

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

4.  The evidence of record indicates that she did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

5.  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.

6.  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.

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