APPLICANT REQUESTS:  That the medical problems that he is currently suffering from be considered service related, and that he be medically retired.  In the alternative, he requests that he be retired for years of service.

APPLICANT STATES:  That the decision by the Army not to reclassify him into the military occupational specialty (MOS) which he had been serving in caused his medical problems.  Those medical problems were not recognized or treated by the Army.  He also contends that the Army’s failure to reclassify him into the MOS in question resulted in his inability to serve on active duty until he qualified for retirement for years of service.

In support of his application he submits documentation from the VA which shows that he was awarded a 30 percent disability for dysthymia (mental depression).  However, the VA denied the applicant service connection for heart disease secondary to dysthymia, stating that there is no record of him receiving treatment or having been diagnosed with a cardiovascular disease while he was in the service, and for sinusitis with cough and sinus headaches, stating that there is no record of him receiving treatment or having been diagnosed with a chronic sinus condition while he was in the service.

EVIDENCE OF RECORD:  The applicant's military personnel and medical records show:

He enlisted in the Regular Army on 29 November 1974 with 3 years, 7 months and 12 days of prior active service.  He was awarded the military occupational specialty of helicopter weapon systems repairer and was promoted to pay grade E-6.

On 4 October 1976 he was awarded the secondary MOS of legal clerk.

On 6 May 1977 he submitted a request to change his primary MOS to legal clerk.  That request was favorably endorsed by his chain of command, with many laudatory letters submitted attesting to his demonstrated performance as a legal clerk.  In the processing of that request, the Army social work service submitted a medical statement in which it was stated that the applicant had been seen by a social worker on two occasions with complaints of chest pains, feeling tired and light headedness.  The social worker attributed those symptoms to the applicant’s anxiety over his realization that he had to be reclassified as a legal clerk in order to advance in the Army.  The applicant had reported that he had only worked as a helicopter weapon systems repairer for 2 months at a time during his military career, working primarily in clerical positions.  The applicant had told the social worker that he strongly believed that his anxiety and decreased temper control were caused by those circumstances and that if his request for reclassification was denied, it would lead to his allowing himself to be discharged.

The results of the applicant’s request for reclassification is not contained in his military records.  However, his records do not contain any orders affecting a reclassification.

On 13 September 1979 he was given a periodic physical examination.  On the report of examination the applicant stated that he was in “Health good”, and was determined to be medically qualified for retention without any physical profile limitations.

On 28 November 1980 the applicant was honorably discharged at the expiration of his term of service.

Army Regulation 611-201 prescribes the criteria for awarding MOS’s to enlisted soldiers.  The MOS of legal specialist requires formal training to be awarded.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.

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 performing active or inactive (weekend drill) duty.

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.  Although the applicant had reported having chest pain, light headedness and feeling tired, there is no indication that he had any medical problems which became medically disqualifying or physically unfitting.  To the contrary, he served on active duty for over 3 years after he reported those problems.

2.  In addition, he was determined medically qualified without any profile restrictions just over a year prior to his discharge.

3.  With all the available evidence showing that he was physically fit, he did not meet the statutory requirements for medical retirement.

4.  As for retiring him for years of service, the applicant made the decision not to reenlist or otherwise extend his enlistment.  There is no evidence in his record which would indicate that he was ineligible to reenlist or extend his enlistment.  The fact that he could not be reclassified as a legal clerk had no bearing on his ability to reenlist.

5.  The Board notes that while the applicant required a waiver of the formal training to be classified as a legal clerk, there is no discernible reason why he could not have enrolled and attended formal training for that MOS.  It appears that he was simply unwilling to take the actions necessary to meet the criteria to be awarded that MOS.

6.  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