MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 23 APRIL 2002
         DOCKET NUMBER: AR2002070789

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Mark D. Manning		Member
Mr. Thomas Lanyi		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his December 2000 disability separation be rescinded and that he be reinstated on active duty. Additionally, he asks that if he is returned to active duty that any subsequent indebtness stemming from recoupment of his disability severance pay be waived.

APPLICANT STATES: He was “medically separated from the Army” in December 2000 for a medical condition which “was undiagnosed.” He states that the condition was described as “chronic mid-back pain, rated as slight – not requiring narcotic therapy – occasional.” He notes that once he was discharged his “condition disappeared” and he believes that his condition may have stemmed from the “treatment [he] was receiving in the Army’s care.” He states that he initially sought medical attention because he experienced swelling and numbness along his spine and that the more treatment he received, the worse his condition got until he “began to go into full blown spasms which prevented [him] from doing [his] job.” The applicant states that he was “mainly” treated by his “primary care physician” and never referred to a “back specialist.” He notes that following “x-rays, a cat scan, a bone scan and an MRI, all of which concluded [his] back was perfectly normal” his primary care physician told him his treatment options had “run out” and that “the only thing left to do was to be medically boarded to determine if [he] was able to continue [his] career.” The applicant states that “a few months after [his] discharge, and stopping the treatment (chiropractic and medication), [his] symptoms disappeared and [he hasn’t] had them back since.”

As such, the applicant maintains that he should be reinstated on active duty to complete the military career he began at age 18, and that he should not be required to pay back his disability severance pay. He states that he contacted the Army in April 2001 to request reinstatement and was told he would have to apply to this Board to have his records corrected.

In support of his request he submits his self-authored statement, a copy of his MEB (Medical Evaluation Board) and PEB (Physical Evaluation Board), extracts from his service medical records, and a January 2002 medical statement from a civilian physician indicating that the applicant’s history of thoracic spine numbness was “now asymptomatic and resolved” and that he had full range of motion in his upper extremities. He also submits a copy of an April 2001 message to PERSCOM (Total Army Personnel Command) requesting information about returning to active duty.

EVIDENCE OF RECORD: The applicant's military records show:

He initially entered active duty in July 1985, at the age of 18, and remained on



active duty until July 1989, presumably the conclusion of his enlistment contract. Copies of his 1989 separation document were not in records available to the Board.

The applicant returned to active duty in October 1990 and served in Southwest Asia between November 1990 and May 1991. He was released from active duty in November 1991. Again, his separation document was not in records available to the Board and as such the reason for his separation is unknown.

In July 1992 he was discharged from the Army Reserve at the conclusion of his 8-year service obligation.

In November 1993 he enlisted in the Army Reserve, and on 15 June 1994 he enlisted in the active Army for a period of 3 years. He successfully completed training as an armor crewman and in February 1996 commenced OCS (officer candidate school).

He was discharged on 29 May 1996 and on 30 May 1996 was commissioned as a U.S. Army Reserve second lieutenant, with immediate call to active duty. In January 1997 the applicant completed the Field Artillery Officer Basic Course by exceeding the course standards. His two officer evaluation reports (9701-9709 and 9710-9809) indicate he was a successful officer who was placed in the top block by both of his senior raters.

His next evaluation report, for the period 1 October 1998 through 15 May 2000, was completed in October 2000 on a DA Form 1059-1 (Civilian Institution Academic Evaluation Report). The report appears to indicate that the applicant was a full time student at Cameron University (located in Lawton, Oklahoma) during the duration of the report, although the “duration of course” is listed as
11 January 1999 through 15 May 2000. The report does not indicate any "non-rated" time. He received his Baccalaureate Degree in May 2000. The report also notes that the applicant reported that he did not complete the APFT (Army Physical Fitness Test) because of an 18 July 2000 physical profile.

The applicant’s available service medical records indicate he was seen by medical personnel for back pain in November 1996 and prescribed Motrin. He was next seen in June 1999, while a student at Cameron University. The June 1999 medical document indicates that the applicant had experienced “mid-back pain” since a motor vehicle accident (MVA) in 1990 or 1991.

The applicant continued to periodically seek treatment for his back pain through the summer of 1999 and beginning in October 1999 was seen on an almost



weekly basis either by one of several physicians in the family practice clinic at Reynolds Army Community Hospital at Fort Sill, Oklahoma or by a chiropractor.

In March 2000 he was issued a temporary profile and in July 2000 he was issued a permanent profile and a MEB was initiated.

The applicant’s November 2000 MEB noted the applicant’s chief complaint as “mid back pain.” The MEB narrative summary noted that the applicant “had experienced pain in his mid back dating back to a MVA in 1990." The applicant reported that he was a passenger in a HUMMV when it was “forced off the road at approximately 60 mph.” The evaluating physician noted that the applicant continued to experience intermittent pains that “worsened in intensity and frequency since that time.” He was initially evaluated by a physician in the Physical Therapy Department in June 1999 and given stretching and strengthening exercises. When he continued to experience intermittent back pains a second physician saw him in July 1999 who determined that “the degree of spasm in his back was felt to warrant trigger point injection and radiographs of the thoracic spine and ribs.” Following the injection, the applicant was doing better and elected to forego further physical therapy. However, in October 1999 he was seen on sick call and given another injection. Following that injection the applicant felt that “the injection provoked severe incapacitating back pains” and he was subsequently prescribed “muscle relaxing agents” and referred to the chiropractic care unit. The chiropractor “treated the patient with conservative modalities and a light duty profile” but the applicant failed to improve “over the course of the next eight weeks.” As such the applicant was referred to a third physician in the family practice clinic. He was treated conservatively, underwent a variety of evaluations, including a CT scan, MRI and a bone scan, all of which were within normal limits. The applicant “seemed to have some decrease in his pain levels” but by July 2000 he “returned with renewed complaints of mid back pain” and was issued a permanent profile. The MEB rendered a diagnosis of “mid back pain” and referred the applicant to a PEB. The MEB was approved by the medical facility’s deputy commander for clinical services.

The applicant concurred with the findings and recommendation of the MEB.

On 17 November 2000 an informal PEB concluded that the applicant’s “chronic mid back pain” precluded reasonable performance of the duties required by his grade and specialty and recommended that he be separated with severance pay.

The applicant provided only the front page of the PEB document with his application, but there is no evidence he disagreed with the findings and




recommendation of the informal PEB and no indication that he demanded a formal hearing.

On 22 December 2000 the applicant was discharged by reason of disability and, according to information contained on his DD Form 214 (Certificate of Release or Discharge from Active Duty) received more than $100,000.00 in disability severance pay. He had more than 11 years of active Federal service and more than 16 years of service for pay purposes at the time of his discharge.

In the applicant's April 2001 message to PERSCOM, which he submitted in support of his request, he noted that he had been released from active duty in December 2000 "due to a medical board." After returning to the DC area he indicated that "several doctors informed [him] that [he] had been misdiagnosed with [his] back injury and should never have been boarded." In that message he requested information about expediting his return to active duty because "there is such a need."

In the applicant's application to the Board he indicated that he initially submitted a request to the Board following his April 2001 communication with PERSCOM. He indicated that he received confirmation that his application had been received but subsequently was informed that it could not be located and he submitted the current application. He did indicate that in trying to "recreate" his original application packet he was unable to "get copies of [his] supporting medical documents." He did, however, submit a January 2002 consultation/evaluation from the Canyon Orthopaedics & Rehabilitation facility. That document noted that the applicant denied any medical problems or pain and concluded that the applicant's "history of thoracic spine numbness now asymptomatic and resolved."

Army Regulation 635-40, establishes the policies and provisions for the Army Physical Disability Evaluation System. It notes that the purpose of the system is to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible soldiers whose military service is terminated because of a service-connected disability, and to provide prompt disability processing while ensuring that the rights and interests of the Government and the soldier are protected.

The regulation also states that all relevant evidence must be considered in evaluating the fitness of a soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made. Preponderance of evidence is described as "factual information




that tends to prove one side of a disputed fact by outweighing the evidence on the other side."

Army Regulation 135-100 establishes the policies and provisions for the appointment of commissioned officers. Chapter 1 states that individuals seeking appointment must meet medical requirements prescribed in Army Regulation 40-501. Individuals who were discharged from prior periods of military service by reason of physical disability are not precluded from applying for appointment. Telephonic information from the Appointment Division at the Army Reserve Center in St. Louis indicated that such individuals would, however, need to submit a current physical examination with their application for appointment. Procedures for submitting an application for appointment are outlined in Chapter 2 of Army Regulation 135-100.

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 evidence indicates that the applicant experienced back pain on and off over a several year period. Following extensive medical evaluations, and both aggressive and conservative medical treatment, his back condition was not resolved and the applicant, with his concurrence, was referred for disability processing. The PEB concluded that the applicant's back condition, at that time, rendered him unfit for continued military service and recommended that he be separated by reason of physical disability. The fact that the applicant felt that he subsequently overcame his condition is not evidence that the condition was not unfitting at the time he was discharged.

2. The Board notes that the 2002 medical evaluation rendered by the Canyon Orthopaedics & Rehabilitation facility merely notes that the applicant's "history of thoracic spine numbness" was "now asymptomatic and resolved," not that it never existed.

3. The applicant's separation by reason of physical disability, with entitlement to more than $100,000.00 in disability severance pay, was appropriate and based on the preponderance of evidence available at that time. There is no evidence in available records, nor submitted by the applicant, that convinces the Board that the applicant was in fact "fit" for duty in December 2000 when he was discharged. As such, there is no basis to rescind the disability separation and reinstate the applicant on active duty.





4. Additionally, because there is no basis to reinstate the applicant on active duty there is no requirement for the Board to render a decision regarding his disability severance pay.

5. The applicant is advised, however, that if he believes he is no longer medically disqualified from military service he may apply for appointment as a commissioned officer via the provisions of Army Regulation 135-100.

6. 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 that requirement.

7. 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

__KAK _ __MDM__ __TL __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002070789
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020423
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.