APPLICANT REQUESTS: That his records be corrected to show that he was medically retired.
APPLICANT STATES: That he was separated in June 1993 with a 10 percent disability rating.
COUNSEL CONTENDS: Counsel was silent on the issue.
EVIDENCE OF RECORD: The applicant's military and medical records show:
On 22 November 1988, he enlisted in the Regular Army, for 3 years and was subsequently retained on active duty for 264 days for the convenience of the Government. He completed his required training and was awarded MOS 11B (Light Weapons Infantryman). He was advanced to pay grade E-4, effective 22 January 1991.
On 4 February 1993, Medical Board (MEBD) Proceedings diagnosed him as having right tibiofibular synostosis, status post (SP) excisional biopsy and referred to a Physical Evaluation Board (PEB). On 19 February 1993, the applicant concurred with the MEBD findings and recommendation. The MEBD also showed that the applicant noted, in late 1989, a swelling over his right anterolateral distal leg following physical training. Treatment continued until the MEBD, with the symptoms becoming progressively worse.
On 1 March 1993, PEB Proceedings show that he was found unfit for continued service based on SP excisional biopsy, with residual pain, limitation of flexion of the ankle and mild sensory neuropathy of the foot and ankle and recommended separation with severance pay and a disability rating of 10 percent. On 2 March 1993, the applicant concurred with the PEB findings and waived a formal hearing.
On 26 April 1993, the Commanding General, 25th Infantry Division authorized the applicants retention on active duty pending an investigation which could result in the preferring of court-martial charges. Applicant was to be discharged upon completion of investigation or court martial proceedings. The reason for the investigation is not in the available records.
On 10 June 1993, he was discharged with a General Discharge Certificate, under AR 635-40, based on a physical disability with severance pay in the amount of $9,705.60. His Report of Separation indicates that he had 4 years, 6 months and 19 days of creditable service.
On 29 January 1994, a VA Rating Decision established a combined SC of 30 percent, effective 11 June 1993, for SP excision, bone tumor, right lower leg and ankle, with residual pain, swelling and limitation of motion, (20 percent) and SP excision, bone tumor, right lower leg and ankle, with residual numbness of right foot, (10 percent).
On 8 May 1997, the Army Physical Disability Agency provided an opinion (COPY ATTACHED) which indicates there is no evidence of any error in the PEB findings; the applicant has not provided any positive medical evidence of error in the PEB findings; and, the PEB findings and recommendations are supported by substantial evidence, were not arbitrary or capricious, and were not in violation of any law or regulation. That agency recommended that the applicants records not be changed.
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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and an advisory opinion, it is concluded:
1. 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.
2. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
3. The applicant has provided no documentary evidence nor is there any in his official records to justify retirement for physical disability.
4. In view of the foregoing, there is no basis upon which to grant 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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