MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 February 2003
         DOCKET NUMBER: AR2002072867

         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
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		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 he should be retired or separated by reason of physical disability.

APPLICANT STATES: The Physical Evaluation Board (PEB) reached a decision that was factually, logically and equitably wrong and reads like an Orwellian novel. A 40 to 60 percent disability rating should be awarded. The applicant further defers to counsel.

COUNSEL CONTENDS: That the applicant had microdiscectomy surgery at L4-L5, at age 16, in 1990. In October 1991, he applied to the United States Military Academy (USMA) and was automatically rejected because of a history of back surgery, but subsequently was accepted with a medical waiver granted by the Department of Defense Medical Examiner Review Board as shown at Exhibit A. In June 1996, he graduated from the USMA. He was pain free until January 1998, when he began experiencing new left radicular pain symptoms. In April 1998, he underwent another procedure on the L4-L5 Disc. On 21 January 1999, a PEB denied his request for disability benefits. He appealed and the PEB affirmed its original findings. On 4 May 1999, the Physical Disability Agency affirmed the decisions of the PEB as clarified and shown at Exhibit I. Counsel makes four points concerning the PEB: (1) The PEB ignored the presumption of service aggravation of the applicant’s disability. (2) The PEB ignored the regulation requiring all reasonable doubt to be resolved in the applicant’s favor. (3) The PEB ignored the testimony of its own doctor. (4) Recently discovered medical evidence warrants a new hearing. Counsel provided a 10 page dissertation with exhibits A through K and a statement from a civilian physician, dated 19 April 2002, indicating he had found a fracture of the inferior facet at L4 on the left and that, in his opinion, it had occurred in and around the year 1998.

EVIDENCE OF RECORD: The applicant's available military and medical records show:

On 27 December 1991, the Surgeon, USMA recommended that the admissions committee grant a medical waiver for his history of HNP (herniated nucleus pulposus).

On 1 June 1996, he was commissioned as a second lieutenant, Ordnance Corps and entered on active duty from the USMA. He was promoted to first lieutenant on 16 April 1998.

The Medical Evaluation Board (MEBD) proceedings, Narrative Summary (NARSUM) and other formal proceedings are not a matter of record and were not provided by counsel.

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On 21 January 1999, in a memorandum, the Assistant Chief, Neurosurgery Service, Madigan Army Medical Center, Tacoma, Washington indicates “I believe 1LT Schepflin has experienced worsening of his lumbar disease to a degree that exceeds the normal progression. As his only significant activity has been military related, the conclusion that his present condition is not service aggravated is incorrect.”

On 28 January 1999, Formal PEB proceedings indicate a disability of refractory lumbar radiculopathy, left. “Medical history indicates [he] had a microdiscectomy L5 (left) in 1990, subsequent to which [he] received a waiver to enter [the] USMA and then commissioning on graduation. In Jan 98 [he] began to experience recurrence of left radicular symptoms without specific aggravating trauma or incident. [He] U[u]nderwent repeat foraminotomy and discectomy of a subannular disc bulge, but now with persisting left L5 radiculopathy manifested by slight weakness of extensor hallicus (sic) longus and pinprick suppression in L5 distribution.” The condition listed as medical board diagnosis #2 (unidentified) was considered by the PEB and found to be not unfitting and therefore not ratable. The PEB found his unfitting condition to be not service incurred or permanently aggravated. It was recommended he be separated without disability benefits.

On 8 February 1999, the applicant indicated he did not concur with the findings and recommendations of his formal hearing.

On 19 February 1999, the PEB responded to his 8 February 1999 non-concurrence and indicated that his entire case, including his rebuttal, was being forwarded to the US Army Physical Disability Agency for further processing and that he could provide to that agency any further additional evidence that he might acquire.

On 29 April 1999, revised PEB proceedings indicate that the 28 January 1999 PEB was upheld.

On 4 May 1999, the PEB responded to the applicant’s rebuttal to the PEB findings. It was indicated that all of his comments and evidence were carefully considered, but they adhered to the findings of the case.

Although not a matter of record, the applicant indicated he was honorably discharged on 23 June 1999, based on physical disability without benefits. There is no evidence of record that he has been subsequently rated by the Department of Veterans Affairs.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.
This Board operates under the standard of presumption of regularity in governmental affairs. The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.

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 in this case does not support his contention that there was an error or injustice in his separation from active duty. The Board presumes he was properly separated and that there is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

2. Notwithstanding the 21 January 1999 memorandum from the Assistant Chief, Neurosurgery Service, Madigan Army Medical Center available evidence shows the applicant’s disability existed prior to service, was not service aggravated, and that he is not eligible for physical disability compensation from the Army.

3. 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.

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

_MHM___ _RJW___ _CLG____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072867
SUFFIX
RECON
DATE BOARDED	20030204
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.