2.  The applicant requests, in effect, disability separation.  She notes her records clearly indicate that she was “separated from the USAR due to multiple training injuries-not by choice.”

3.  Records available to the Board indicate the applicant enlisted in the USAR on 28 July 1986.  On 10 January 1987, while under going training at Fort Sam Houston, Texas the applicant sustained a pelvic stress injury  while running during physical training.  She was issued a temporary profile but completed the training cycle and was released from active duty on 27 March 1987.  An approved line of duty investigation noted the applicant’s injury occurred in the line of duty.

4.  The applicant initiated a claim for disability with the VA in August 1987.  Although the VA noted her stress injury and complaint of bilateral varicosities were service connected neither warranted any disability compensation.  Her complaints of residuals of stress reaction in her lower extremities and residuals of flu symptoms were unfounded.

5.  On 10 June 1988, the applicant sprained her left wrist and strained her lower back when she tripped over a tent rope at a training site at Fort Hood, Texas.  A line of duty investigation noted the applicant’s injury occurred in the line of duty.  The applicant complained of lower back pain and continued to seek evaluation by the VA.  A VA radiological report, completed in December 1990, noted her hips, pelvis, dorsal spine and lumbar spine were all normal.  She attended REFORGER training in November 1991 and in December 1991 was awarded an Army Achievement Medal.

6.  Beginning in June 1991 the applicant was issued a series of temporary physical profiles for chronic lower back pain. The profile became permanent in January 1992 and the applicant was referred for retention evaluation.  The command surgeon noted on 2 August 1992 that the applicant did not meet the criteria for retention under the provisions of Army Regulation 40-501, paragraph 3-41c(1) and (2) and recommended she be separated from the military.

7.  The applicant accepted the recommendation that she be separated from the military on 7 October 1992 and on 6 November 1992 was honorably discharged from the Army Reserve under the provisions of Army Regulation 135-178.

8.  Subsequent to her separation she was granted a combined service connected disability rating of 20 percent by the VA for lower back strain, varicose veins, and a pelvic stress fracture.  The back and vericose veins were independently rated at 10 percent.

9.  Army Regulation 40-501, paragraph 3-41c(1) and (2) state that an individual whose medical conditions result in interference with satisfactory performance of duty or whose health or well-being would be compromised if he or she were to remain in the military do not meet the medical retention requires for continued military service.

10.  Army Regulation 135-178 notes that USAR soldiers will be separated when it is determined that an enlisted soldier is no longer qualified for retention by reason of medical unfitness unless the soldier request and is granted a waiver or is eligible for transfer to the Retired Reserve.

11.  Army Regulation 635-40 notes that when a commander or other proper authority believes that a soldier not on extended active duty is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the soldier for medical evaluation.

12.  Army Regulation 635-40 provides for the disability processing of soldiers who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty training.  While referral for processing does not mean an automatic entitlement to disability compensation, once referred, a determination must be made whether the disease or injury was the proximate result of performing duty.  In order for soldiers of the Reserve Component to be compensated for disabilities incurred while performing duty there must be a determination by a Physical Evaluation Board (PEB).  If the disability was incurred while performing duty and was the proximate result of performing duty and the percentage of disability is under 30 percent the Reserve Component soldier may be discharged with disability severance pay.  In order to be permanently retired the soldier’s disability would need to be rated between 30 and 100 percent.

13.  In the processing of this application and advisory opinion (COPY ATTACHED) was provided by the US Army Physical Disability Agency.  The opinion noted the applicant should have been referred to a Medical Evaluation Board and PEB before discharge.  While the applicant complained of several medical conditions the only one which “officially limited the applicant’s performance of duty was her chronic low back pain.”  The opinion conclude that had the applicant been referred for disability processing “the only medical diagnosis which would not meet medical retention standards, and be the proximate result of performing duty, would be the chronic low back pain” and that the condition would have been rated at 10 percent under VASRD code 5295.  The opinion recommended the applicant be separated from the military due to physical disability with severance pay.

14.  VASRD code 5295 applies to lumbosacral strain and provides for a rating of 10 percent for characteristic pain on motion.

CONCLUSIONS:

1.  In retrospect, the medical evidence of record establishes that the applicant was physical unfit at the time of his separation from the Army Reserve as a result of chronic lower back pain which was the proximate result of performing her military duties.

2.  The foregoing conclusion is supported by the advisory opinion furnished by the Army’s Physical Disability Agency.

3.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the action separating the individual concerned for the USAR on 6 November 1992 is void and of no force or effect;

	b.  by showing that on 6 November 1992, she was physically unfit to perform the duties of her office, grade, rank or rating by reason of chronic lower back pain, rated 10 percent disability, under Code 5295 of the VASRD; that the disability was permanent; that it was incurred while she was entitled to receive basic pay as a member of a Reserve Component on active duty; that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was incurred in line of duty that it was not the direct result of armed conflict; and that it was not caused by an instrumentality of war; and 

	c.  by showing that on 6 November 1992, she was discharged from the Army Reserve with entitlement to severance pay in the highest grade satisfactorily held under the provisions of Title 10, United States Code, sections 1203 and 1212.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON