Search Decisions

Decision Text

ARMY | BCMR | CY1996 | 9608045C070209
Original file (9608045C070209.txt) Auto-classification: Denied
APPLICANT REQUESTS:  That his honorable discharge be corrected to a medical discharge.

APPLICANT STATES:  That he suffered from back and left shoulder conditions which warranted his being medically boarded and retired.

In support of his application he submits a copy of a DA Form 3349, Physical Profile Record, which shows that he was diagnosed as having left shoulder pain secondary to calcifying hematoma, that he was medically qualified for duty with permanent assignment limitations, and that he was not to be separated from the service without prior medical evaluation.  He also submits copies of other physical profiles and a copy of his VA rating decision in which he was awarded a 10 percent disability rating for his back.  The decision also indicates that he has a service related left shoulder condition but that condition is less than 10 percent disabling and, therefore, not ratable.

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

The applicant enlisted in the Regular Army on 23 August 1966, was awarded the military occupational specialty of machine operations specialist, served in Vietnam, and was promoted to pay grade E-5.  On 25 October 1969, while assigned to Walter Reed Army Medical Center, Washington, D.C., he was on pass when he fell asleep at the wheel of his civilian automobile and the vehicle went off the road resulting in an accident.  He was admitted to the hospital for injuries to his left arm and his neck.

He reenlisted on 23 September 1970, was awarded the MOS of data analysis specialist, and was honorably discharged on 17 September 1973 by reason of early separation of overseas returnee.

On 9 May 1974 he enlisted in the Puerto Rico Army National Guard (PRARNG) and was appointed as a warrant officer on 8 August 1979.

On 2 February 1983 he was the subject of a medical evaluation board (MEB), which found the applicant to suffer from a knee injury and obesity.  An informal physical evaluation board (PEB) was then convened which found the applicant physically unfit due to knee impairment, moderate, and recommended he be separated with severance pay, rated 20 percent disabled.  The applicant disagreed with those findings and recommendation and demanded a formal PEB hearing.  At the formal hearing, the applicant, with counsel, contended that he should not be separated because he was physically fit, that the findings of the MEB were flawed.  The applicant was successful in his endeavor and he was retained in the PRARNG.  Neither the MEB nor the PEB noted any problems with the applicant’s back or shoulder.

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 for a determination of the percentage of disability to be awarded.  This regulation also provided in pertinent part 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 him physically unfit.

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.

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.  There is no indication that the applicant was ever determined to be medically unfit while he was in the Regular Army.  Therefore, he was not referred to a medical evaluation board.  Absent this referral, the applicant was not eligible for separation by reason of physical unfitness.

2.  The applicant reenlisted, was awarded a second MOS, was enlisted in the PRARNG, was appointed as a warrant officer, and was found medically fit by a PEB, all of which occurred after the automobile accident in which he injured his arm and back.  All of these require a level of physical fitness which refutes the applicant’s claim that he was medically disqualified.

3.  The physical profile submitted by the applicant in support of his application specifically stated that he was medically qualified for duty.  A finding of medical disqualification is required to be considered by a PEB.

4.  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

Similar Decisions

  • ARMY | BCMR | CY2003 | 03096854C070212

    Original file (03096854C070212.rtf) Auto-classification: Denied

    The applicant requests physical disability retirement with a disability rating of 100 percent. A 30 August 1999 report of medical examination depicts the applicant's various medical conditions, to include bilateral weakness in arms/forearms, degenerative joint disease to his back, knees, and ankles, and bilateral ankle pain. The applicant had pain to his back, knee, right ankle, and left wrist, as a result of his various injuries; consequently, the PEB determined that he be rated as 20...

  • AF | PDBR | CY2011 | PD2011-00245

    Original file (PD2011-00245.docx) Auto-classification: Denied

    The Informal PEB (FPEB) adjudicated the cognitive disorder and chronic low back pain conditions as unfitting, rated 10% each IAW the Veterans Administration Schedule for Rating Disabilities (VASRD); and adjudicated the chronic left shoulder pain condition as unfitting, rated 0%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. A Physical Medicine clinic note dated two months prior to the MEB exam recorded normal movement of all extremities, tenderness of the...

  • ARMY | BCMR | CY2001 | 2001058583C070421

    Original file (2001058583C070421.rtf) Auto-classification: Denied

    APPLICANT STATES : That she had a compression fracture from an injury that she received in Kuwait. An 8 June 2001 VA medical record shows that she was receiving a 60 percent disability rating for neck and back pain, that the applicant stated that her problem had been progressively getting worse. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.

  • ARMY | BCMR | CY2014 | 20140009379

    Original file (20140009379.txt) Auto-classification: Denied

    The applicant requests correction of his disability findings to add the following unfitting conditions and to increase his disability rating to at least 30 percent for medical retirement: * left shoulder injury * right shoulder injury * neck injury 2. He sustained these injuries during his military service and they should have been rated by the physical evaluation board (PEB) and included in the record. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling),...

  • ARMY | BCMR | CY2014 | 20140006667

    Original file (20140006667.txt) Auto-classification: Approved

    After the applicant jumped out of the vehicle, he informed them that he had a sharp pain in his shoulder and back. Medical records show the applicant was seen on 20 June 2003, for lower back pain. Also, there is no evidence that shows he was properly counseled, as to his rights to referral to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) for the purpose of disability benefits determination as a result of his medical condition developed while on AD.

  • AF | PDBR | CY2011 | PD2011-00296

    Original file (PD2011-00296.docx) Auto-classification: Approved

    Six other conditions, as identified in the rating chart below, were forwarded on the MEB submission as medically acceptable conditions. An Informal PEB adjudicated the low back condition as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. Besides the increased pain and a very minor change in the ROM, there were no other significant changes in the CI’s condition from that recorded in the MEB exam.

  • ARMY | BCMR | CY2011 | 20110009198

    Original file (20110009198.txt) Auto-classification: Denied

    The applicant's service records, including his personnel and medical records are not available for review with this case. He stated: * His shoulder injury occurred while on active duty and he underwent an MRI (magnetic resonance imaging) in March 1997 wherein the doctors noted his rotator cuff problems * Although there was no line of duty completed, the treatment and the diagnosis should have been sufficient to refer him to the PDES * His chain of command failed to complete the line of...

  • ARMY | BCMR | CY2010 | 20100026348

    Original file (20100026348.txt) Auto-classification: Denied

    Application for correction of military records (with supporting documents provided, if any). The applicant provides: * NGB Form 22 * NGB Form 22a (Correction to NGB Form 22) * Three DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Two DA Forms 2173 (Statement of Medical Examination and Duty Status) * Two PRARNG memoranda * Department of the Army memorandum * Eight orders * Award certificate * Letter of recommendation * DA Form 2166-5A (Senior Enlisted Evaluation...

  • ARMY | BCMR | CY2013 | 20130016870

    Original file (20130016870.txt) Auto-classification: Denied

    He indicated that he had a bilateral fracture in his lower back. All available medical evidence at the time shows his only complaint was lower back pain. The PEB did so and rated his condition 10% disabling.

  • ARMY | BCMR | CY2010 | 20100028773

    Original file (20100028773.txt) Auto-classification: Denied

    d. Neither his commander, nor any official within the PRARNG, ensured that a Line of Duty (LOD) investigation was conducted prior to his release from active duty (REFRAD). The board determined: * he was not able to comply with all of his MOS duties * he received a 20% Department of Veterans Affairs (VA) disability rating * he had completed 25 years of service and was qualified for retirement by Medical Conditions The board recommended he receive an L4 permanent profile with the assignment...