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 applicants 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 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.
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 applicants 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 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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