| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Mr. Celia L. Adolphi | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: In effect, reconsideration of his request that his general, under honorable conditions discharge (GD) be upgraded to a fully honorable discharge (HD); that the reason for his discharge be changed to medical; and that he be provided slave reparations.
APPLICANT STATES: In effect, that the original consideration of his case by the Board, that was summarized in a Memorandum of Consideration
(MOC-AR2000047112), dated 27 March 2001, and an administrative letter of denial of his request for reconsideration by the Board staff (AR2001056263), dated 17 September 2001, did not include an Army orthopedic examination that he now provides as new evidence.
NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records that were summarized in MOC-AR2000047112, dated
27 March 2001, which was prepared to reflect the Board’s original consideration of this case.
The applicant submits an excerpt from his Department of Veterans Affairs (VA) medical record that includes a medical history and physical examination that contained a date stamp that indicates they were received by the VA on 29 April 1985. This is considered as a submission of new evidence that requires reconsideration by the Board.
The medical document submitted by the applicant lists the following three dates of medical treatment: 23 November 1984; 4 January 1985; and 1 April 1985. This treatment record further provides a medical history of the treatment on his left hip that first occurred when he fractured the bone in the left iliac crest and a hip strain prior to entering the Army. The applicant stated that while serving on active duty, he developed pain in his left hip while engaging in physical training, and that the pain became progressively worse. A physical examination conducted by the VA showed that he walked with an antalgic gait on the left and demonstrated pain with normal range of motion of the hip over the anterior-superior iliac spine. The impression arrived at was, “ligamentous strain: pelvis and hip.”
The earliest date of treatment is 23 November 1984, which indicates this care took place while the applicant was on active duty. However, the treatment record also confirms, by the applicant’s own admission, that this injury first occurred prior to his entering active duty. This record does not indicate an aggravation of the injury on the date of treatment and only that the applicant entered seeking an evaluation of his injury.
As previously noted, the applicant’s military medical record did not indicate his medical condition was first incurred during military service while he was entitled to receive basic pay or that it rendered him medically unfit for retention on active duty. Also, the record gives no indication that he was ever referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) and his final medical examination confirms that he was medically fit and cleared for retention/separation by competent medical authority.
On 27 March 2001, this Board concluded that the evidence of record showed that the applicant had a pre-existing injury to his hip that was documented in his entrance physical examination in March 1982, and that he had been diagnosed with a fractured left iliac bone with a sprain in his left hip at the age of 15. It further found that the applicant had been cleared for retention/separation by competent medical authority with a physical profile of 111111; thus, he was separated by reason of unsatisfactory performance, not as the result of a medical condition or physical disability. The Board finally determined that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and therefore relief was not warranted.
Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. In addition, Title 10 of the United States Code, chapter 61, provides for disability retirement or separation of a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
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. The Board notes the applicant’s contention that his GD should be upgraded to an HD and that the reason for his discharge should be changed to medical; however, it finds these claims lack merit.
2. The new evidence provided by the applicant does not provide information or evidence that alters the original findings of the Board. Further this document confirms that the applicant had been diagnosed with the condition in question prior to entering active duty, that this condition was not disabling, and it did not warrant processing under medical/disability provisions at the time of his separation.
3. The evidence of record still confirms that the applicant was found fit for retention and cleared for separation by competent medical authority during his discharge processing. Therefore, the Board concludes that the overall merits of the case, including the latest submission and arguments are insufficient as a basis for the Board to reverse its previous decision.
4. In addition, the Board notes the applicant’s request for slave reparations; however, resolution of this issue is not within the purview of this Board, which by law, is only empowered to correct military records based on the existence of error or injustice.
5. 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
__RVO__ _ _CAL__ __JTM DENY APPLICATION
INDEX
| CASE ID | AC2001063099 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/02/28 |
| TYPE OF DISCHARGE | (GD) |
| DATE OF DISCHARGE | 19841204 |
| DISCHARGE AUTHORITY | AR635-200, chapter 13. . . . . |
| DISCHARGE REASON | Unsatisfactory Performance |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 995145.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
AF | PDBR | CY2013 | PD2013 01230
To that end, the evidence for the left hip neuritic post-op pain and right greater trochanteric bursitis conditions are presented separately; with attendant recommendations regarding separate unfitness and separate rating if indicated.The Board first considered if the right greater trochanter bursitis condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting. He continued to complain of right hip pain; however, his left hip pain was much more severe. ...
AF | PDBR | CY2012 | PD-2012-00692
The Physical Evaluation Board (PEB) adjudicated the left hip and lower extremity pain condition as unfitting, rated 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. At the VA Compensation and Pension (C&P) exam prior to separation, the CI reported pain in her low back that radiated into her buttocks which had been diagnosed as left ischial tuberosity syndrome. However, the Board notes the evidence supports primarily left hip exam findings to...
AF | PDBR | CY2012 | PD2012 01579
His fracture healed but he had pain in his left femur and his left hip at the bone graft site. **Limited extension.The Board directs attention to its rating recommendationbased on the above evidence.The PEB rated the chronic pain left femur fracture condition at 10% using an analogous 5003 code (degenerative arthritis) based on the USAPDA pain policy.The VA separately rated the left lower extremity for twoinjuries: 5262 (impairment of tibia and fibula) and 5257 (knee, other impairment of)...
AF | PDBR | CY2013 | PD-2013-01204
The record contains well documented evidence of significant left thigh muscle injury with an open, comminuted femur fracture that required ORIF and subsequent bone grafting. RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: DoD Physical Disability Board of Review
AF | PDBR | CY2011 | PD2011-01028
The Board evaluates VA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. The low back pain also radiated to the left buttock, hip and the upper anterior left thigh including “left sacroiliac joint pain, which is thought to be related to the low back pain.” X-rays of the lumbar spine and sacroiliac joints were normal; MRI of the...
AF | PDBR | CY2012 | PD2012 01719
5292 Spine, limitation of motion of, lumbar The VA rating under 5292 referenced “slightly limited motion of the lumbar spine”, although the evidence cited full ROM. BOARD FINDINGS : IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.The Board did not surmise from the record or PEB ruling in this case that...
AF | PDBR | CY2010 | PD2010-00125
It has also been found that the ICD-9 codes were misdiagnosis; May-Thurner Syndrome (45181): Compress iliac vein; Left Lower Extremity Deep Venous Thrombosis (4539): Blood clot. The Board first considered the TDRL entry rating and notes that the FPEB IAW SECNAVINST 1850.4E rating increased the 40% rating during the period of TDRL solely due to the recency of the DVT. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not...
AF | PDBR | CY2012 | PD2012-00866
Multifactorial left hip pain refers to pubic ramus stress fracture, chronic tendinosis in the thigh adductors and inguinal and sacroiliac ligaments. All members agreed there was evidence of painful motion and decreased function warranting a rating of 10% with application of §4.59 and §4.40. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION Multifactorial Left Hip...
AF | PDBR | CY2013 | PD2013 00212
The C&P joints exam noted a hip strength of 1/5 due to pain; the C&P general examination a week later noted no muscle atrophy and a normal motor examination.The various examination findings suggest that the CI’s abnormal gaitwas due to pain from the hip, rather than muscle weakness or motor nerve injury. On exam there was tenderness of the anterior, lateral and posterior left thigh and the examiner noted the CI’s paresthesias to have hyper-esthetic and “pins and needles” components.The...
CG | BCMR | Disability Cases | 2001-058
At the time the applicant was placed on the PDRL, the Coast Guard determined that she was 20% disabled due to intervertebral disc syndrome and 10% disabled due to “sciatic nerve, neuralgia, secondary to nerve damage caused by unnatural walking from bone spurs prior to corrective surgery.” The applicant’s combined disability rating was 30%, and therefore, she was permanently retired from the Coast Guard due to physical disability. In this regard CGPC stated the following: “[The medical...