| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. John N. Slone | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Mr. Roger W. Able | Member |
APPLICANT REQUESTS: That his discharge with severance pay be changed to a medical retirement.
APPLICANT STATES: That the VA has rated his disabilities at 40 percent. He provides his VA rating decisions dated 5 October 1989, 4 November 1991, and 22 January 1992 as supporting evidence.
COUNSEL CONTENDS: Counsel makes no additional contention.
EVIDENCE OF RECORD: The applicant's military records show:
After having had prior service in the Army National Guard, he enlisted in the Regular Army on 28 September 1973. He was promoted to Sergeant First Class, E-7 on 5 December 1984 and held military occupational specialty 63H (Track Vehicle Repairer).
The applicant’s Enlisted Evaluation Reports for the periods ending April 1985, April 1986, January 1987, July 1987, and December 1987 all contain highly commendable comments and show, in effect, that he completed all assigned tasks successfully.
On an unknown date, but apparently around 1988, the applicant was given a P3 profile for severe allergies, asthma, and laryngospasm. He was given assignment limitations of physical training at his own pace and tolerance, no field duty, and no use of protective mask.
In August 1988, the applicant was referred to a medical evaluation board (MEB) with a chief complaint of asthma and allergies and his inability to perform his military duties in the field secondary to his allergies, which had not responded to treatment. Other conditions noted were patellofemoral pain syndrome of the right knee, compression neuropathy in the right upper extremity, and eyesight problems. He was diagnosed with asthma; degenerative joint disease, right knee; compression neuropathy of the neck; and eye problems and referred to a physical evaluation board (PEB). On 5 August 1988, the applicant agreed with the findings and recommendation.
On 10 August 1988, an informal PEB found the applicant unfit for military service due to asthma at a 10 percent disability rating. The other diagnoses were found to be not unfitting. It was recommended he be discharged with severance pay. On 16 August 1988, the applicant concurred in the findings and recommendation and waived a formal hearing.
On 23 September 1988, the applicant was discharged, with severance pay, for disability.
On 5 October 1989, the VA awarded the applicant a 10 percent disability rating for asthma effective 24 September 1988. On 4 November 1991, the VA awarded him a 10 percent disability rating for allergic sinusitis, rhinitis, effective 6 February 1991 for a combined rating of 20 percent. On 22 January 1992, the VA awarded the applicant a 20 percent disability rating for cervical spondylosis with right upper extremity compression symptoms and a 10 percent disability rating for post-traumatic changes right knee, both effective 24 September 1988 for a combined rating of 40 percent.
Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.
Title 38, U. S. 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, 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. The applicant has failed to submit evidence that would satisfy this requirement.
2. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.
3. The Board notes that no physical disabilities prevented the applicant from performing his duties in a highly satisfactory manner, at least while in garrison. It was only his asthma that prevented him from performing his duties in a field environment. He was properly found unfit for duty only for his asthmatic condition and his asthma was therefore the only ratable condition.
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
__jns___ __mhm___ __rwa___ DENY APPLICATION
| CASE ID | AR2001051839 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010227 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2001 | 2001057266C070420
APPLICANT STATES : That his records show that he did have a disability and that he should have been medically discharged. A medical report prepared at the Army hospital at Fort Leonard Wood, Missouri, shows that the applicant was admitted to the hospital on 14 January 1988 after being examined for possible medical board evaluation because of complaints of neck and back pain since 14 June 1987 [the date of the automobile accident]. On 6 July 1993 the applicant was discharged from the Army Reserve.
ARMY | BCMR | CY1996 | 9608460C070209
APPLICANT REQUESTS: That his records be corrected to show that he was retired for a physical disability, rated at 30 percent. The PEB recommended his separation, with a combined disability rating of 20 percent. On 11 January 1993, a VA Rating Decision awarded the applicant a combined service-connected disability rating of 30 percent, effective 8 July 1992, for (1) right foot condition, 10 percent; (2) right knee condition, 10 percent; (3) back condition, 10 percent; and, (4) left knee...
ARMY | BCMR | CY1996 | 9605689C070209
EVIDENCE OF RECORD: The applicant's military records show: The applicant entered the Army on 23 September 1981 and served on continuous active duty until his discharge in 1993. The applicant did not have any medically unfitting disability which required physical disability processing. Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or...
ARMY | BCMR | CY2013 | 20130002675
e. A DA Form 199 (PEB Proceedings) that shows on 25 May 2004 an informal PEB reviewed the applicant's DD Form 2808, dated 21 April 2004, along with his medical records and found him physically unfit due to bilateral knee pain with a history of separate injuries to both knees and degenerative arthritis. The applicant contends his records should be corrected to show he was retired due to physical disability because the MEB and PEB only considered his bilateral knee pain and failed to consider...
ARMY | BCMR | CY1997 | 9711337
On 23 August 1995, an informal Physical Evaluation Board (PEB) found the applicant unfit by reason of asthma at 10 percent disability and migraines at 10 percent disability and recommended separation with 20 percent disability severance pay. The VA, however, is not required by law to determine medical unfitness for further military service. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at...
AF | PDBR | CY2012 | PD2012 01085
Pre-Separation) – All Effective Date 20011007CodeRatingConditionCodeRatingExam Back, bilateral shoulders, bilateral knees, (MEB DX 1-7:1) Spondylolysis/Grade I spondylolisthesis 2) DDD w/disc protrusion 3) Degenerative joint disease 4) Bilateral shoulder pain, mild to moderate 5) Bilateral knee pain, moderate, secondary to chondromalacia 6) Cubital Tunnel syndrome, mild 7) Plantar fasciitis, right foot, mild to moderate Board members agreed that the 5285 criteria do not support an...
ARMY | BCMR | CY2008 | 20080014123
The applicant states, in effect, that he was only rated at 20 percent which is not enough to be medically retired. 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. Consequently, due to the two concepts involved, an individuals medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability.
ARMY | BCMR | CY2001 | 2001060615C070421
The formal PEB recommended a combined rating of 20 percent and that the applicant be separated from the service with severance pay. The applicant provided VA documentation, dated 7 July 1988, which shows that service connection was granted and a rating of 40 percent was assigned for a spinal disc condition. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically...
ARMY | BCMR | CY1996 | 9606022C070209
Although the she had numerous medical problems throughout her career, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. Accordingly, the applicant was separated from active duty for reasons other than physical disability. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.
ARMY | BCMR | CY2001 | 2001058681C070421
On 16 March 2000 he provided a rebuttal, requesting a reevaluation of his left knee, and stating that his knee or his range of motion would never be the same again as a result of his injuries. The ensuing PEB did award him a 10 percent rating for his left knee pain, and awarded him a zero percent rating for his low back pain and his neck pain. The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of...