IN THE CASE OF: BOARD DATE: 10 March 2011 DOCKET NUMBER: AR20100021787 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his request to have the Physical Evaluation Board (PEB) results changed to reflect that he was fit for duty, that his discharge be voided, and that he be reinstated to active duty in the pay grade of E-7. 2. The applicant states, in effect, that he was unjustly discharged from the service with severance pay after the Army botched his surgery. He goes on to state that he acquired a position as a Department of the Army civilian working at range control at Fort Richardson, AK and began to experience the same symptoms he had on active duty. He goes on to state that he used his civilian insurance to have surgery to correct the problem and found out that the first surgery had been done improperly, which resulted in his being unjustly discharged. He continues by stating that he now requires a waiver to reenter military service and contends that the Board took the easy way out by denying his previous application. He also states that he was and still is a good Soldier who is willing to do whatever it takes to continue to serve. 3. The applicant provides a Providence Alaska Medical Center (PAMC) Procedure Report, dated 8 July 2010, describing his surgical procedure. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070015667, on 4 April 2008. 2. On 24 May 2007, an informal PEB found the applicant physically unfit due to chronic low back pain, improved after lumbar fusion for spondylolisthesis, but unable to perform the rigors of infantry duty without exacerbation of pain. The PEB further found that imaging shows hardware in place, Grade I spondylolisthesis L4-L5, spondylolysis of L4, narrowing of the L4-L5 disk space, and degenerative changes at T12-L1. 3. The PEB recommended a combined 0 percent (%) disability rating percentage and that the applicant be separated with severance pay if otherwise qualified. 4. On 30 May 2007, the applicant acknowledged he had been advised of the findings and recommendations of the PEB and he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case. 5. On 11 July 2007, the applicant was honorably discharged by reason of disability with severance pay. His DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time shows he completed 6 years, 9 months, and 23 days of net active service this period with 7 years, 4 months, and 2 days of total prior active service, for 14 years, 1 month, and 25 days of total active service. He was paid $48,594.00 in severance pay benefits. His DD Form 214 shows he was assigned a reentry (RE) code of RE-3. 6. In his previous application to the Board the applicant submitted a letter, dated 24 October 2007, from his doctor at Providence/Matanuska Health Care in Wasilla, AK. The doctor reported the applicant was seen in their clinic where he had a normal physical exam and he was referred to physical therapy for a more extensive evaluation. The doctor further reported the applicant had some back pain and stiffness which was mild and he received a short course of physical therapy which improved his overall strength and conditioning. The doctor further noted the applicant should be reconsidered for active duty. 7. A review of the Operation Report, dated 18 July 2006, explaining the applicant’s operation at Madigan Army Medical Center, Tacoma, WA on 17 July 2006 indicates that each screw placed in the applicant at the time was tested and found to be in good position. 8. The PAMC Procedure Report provided by the applicant as new evidence with his request indicates that “the pedicle screws were backed out with a heavy needle holder. They were obviously extremely loose and nonunion in nature.” 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30%, if the Soldier has less than 20 years of service as defined in Title 10, U.S. Code, section 1208, and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty. 10. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Table 3-1 of this regulation provides that RE–3 applies to persons not qualified for continued Army service, but the disqualification is waivable. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that he was unjustly discharged because the decision of the PEB was based on a botched surgery by Army medical officials and that he has since had surgery that has corrected his problem has been noted and found to lack merit. 2. While it is recognized that there are always risks associated with surgery and that not all surgeries are successful, the fact that screws were found loose 3 years after his surgery does not constitute a “botched” surgery nor does it establish any negligence at the time on the part of the medical personnel who performed the surgery. 3. It is noted that at the time of his original surgery, specific mention was made regarding the correct positioning of the screws and the care used in installing them. Additionally, the report that the applicant provides as new evidence does not indicate that an improper procedure had been previously performed or that the surgery had been “botched” as he claims. 4. It is also noted that when the applicant previously applied to the Board he submitted a statement from a physician that indicated he should be considered for active duty; however, it appears that he again had to have surgery for the same problem and he has still not provided sufficient evidence to show that he meets the medical standards for enlistment or retention. 5. While it is understood that the applicant does not want to apply for a waiver in order to enlist because he may lose a pay grade, the Board is not in a position to judge the applicant’s physical fitness for active duty and to do so would be inappropriate as it would afford him a benefit not afforded to others in similar circumstances. 6. Therefore, absent evidence to show that he was not afforded proper medical processing through the Physical Disability Evaluation System at the time, there appears to be no basis to grant his request. 7. However, the applicant is again advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service. These individuals can best advise a former service member as to the needs of the service at the time and are required to process enlistment waivers for the applicant’s RE code. 8. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X_____ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070015667, dated 4 April 2008. _________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100021787 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100021787 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1