| Mr. Loren G. Harrell | Director | |
| Mr. Edmund P. Mercanti | Analyst |
| Mr. Frank R. Taylor | Chairperson | |
| Ms. Karen J. Newsome | Member | |
| Mr. Ted S. Kanamine | Member |
APPLICANT REQUESTS: That his Voluntary Early Retirement Authority (VERA) separation be corrected to a medical retirement.
APPLICANT STATES: He is currently under medical care due to epilepsy/seizure disorder, a service connected condition, which is steadily worsening. He states that his medical records will confirm his contention.
EVIDENCE OF RECORD: The applicant's military personnel and medical records show:
He enlisted in the Regular Army on 7 August 1979, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-6.
The applicant first complained of having a seizure in 1989 and was treated for seven different seizures during the remainder of his military career, none of which were observed by medical personnel. He was prescribed anti-seizure medication but his records show that he did not take that medication as directed.
In January 1992 the applicant was given a physical examination in conjunction with his request to take Special Forces training. On the SF93, Report of Medical History, completed by the applicant himself, he stated that he was in “Great” health”, that he was not taking any medications, and he marked the “No” blocks of all of the items (medical defects or symptoms) listed under “have you ever had or have you now . . .” except for “Cramps in your legs.”
On 19 May 1994 the applicant was given a separation physical examination. On that SF93 he marked 38 “Yes” blocks, 37 of which he had marked “No” just over 2 years before. He stated that he had been diagnosed with epilepsy in December 1993. After all of those medical conditions were considered, the applicant was determined medical qualified for retention, with permanent physical profile restrictions for his epilepsy.
On 31 August 1994 the applicant was honorably released from active duty, at his own request, and placed on the retired list the following day. He had 15 years and 24 days of active duty and retired under the VERA.
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 parameters 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. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.
Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.
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. The applicant was determined medically qualified during his separation physical examination. The physician conducting that examination had been aware of the applicant’s epilepsy when he made that determination.
2. Without a finding of medical disqualification, there was no basis to refer the applicant to a PEB or to consider him for a medical retirement.
3. In addition, the applicant had already ended his military career by accepting the VERA. There was no loss of career for which to compensate him.
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
FRT KJN TSK DENY APPLICATION
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