APPLICANT REQUESTS: That his records be corrected to show that his discharge was for retirement or that he be reinstated on active duty.
APPLICANT STATES: There is no evidence that he has or ever had the medical condition for which he was discharged.
EVIDENCE OF RECORD: The applicant's military and medical records show:
On 4 January 1977, after previously serving in the Regular Army (RA) for 2 years, between 22 July 1974-21 July 1976, he reenlisted in the RA and continued his service through reenlistments until his separation. He completed his required training and was awarded MOS 91B (Medical Specialist). He was promoted to pay grade E-7 effective 1 November 1986.
In December 1988, he began to have intermittent low back pain (LBP) which evolved into constant LBP in December 1989.
On 28 September 1990, Medical Evaluation Board (MEBD) Proceedings diagnosed the applicant as having chronic LBP and referred the case to a Physical Evaluation Board (PEB).
On 3 October 1990, the applicant agreed with the MEBDs findings and recommendation.
On 11 October 1990, PEB Proceedings found the applicant to be physically unfit for further active service by reason of LBP and recommended that he be separated, 10 percent disabling, with severance pay.
On 16 October 1990, the applicant concurred with the PEB and waived a formal hearing.
On 5 November 1990, the applicant was separated, in pay grade E-7, under AR 635-40, based on his physical disability. He received severance pay in the amount of $43,156.80. His Report of Separation indicates that he had a total of 15 years, 10 months and 2 days of creditable service.
On 28 March 1991, a VA Rating Decision awarded the applicant a service-connected disability rating of 20 percent for a herniated disc, L5-S1.
On 25 April 1997, the Office of The Surgeon General indicated that the applicant did not meet medical retention standards at the time of his separation; that the medical boards were correct; but, that the applicants condition appears to have worsened somewhat since his discharge.
Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
Title 38, United States Code, section 310 and 331, permits the Department of Veterans Affairs to award compensation for disabilities which were incurred in or aggravated by active military service.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 applicants disability was properly rated in accordance with the VA Schedule for Rating Disabilities. His separation with severance pay was in compliance with law and regulation.
4. The medical evidence of record supports the determination that the applicants unfitting condition was properly diagnosed and rated at the time of his discharge.
5. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation.
6. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agencies examinations and findings.
7. In order for the applicant to be retired for service, he must have satisfactorily completed a minimum of 20 years of active duty or to be retired for disability, he must have had a disability rating of 30 percent or more.
8. Since the applicant was not medically qualified for retention and the VA has increased his percentage of disability, there is no basis for granting reinstatement.
9. 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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