RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 16 MARCH 2004
         DOCKET NUMBER: AR2003092542


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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Richard T. Dunbar		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests physical disability retirement. His DD Form 293, request to the Army Discharge Review Board, is accepted in lieu of a DD Form 149.

2. The applicant states that he was medically boarded on 18 July 1997 because of chronic pain in his neck, which was the result of a broken neck. He was found fit for duty since there was no disability rating for chronic pain. He requested retirement since he could not wear a helmet and was not deployable. Because he was on orders to Korea, his request was disapproved; however, once it was determined that he could not be stationed in Korea because of his permanent profile, his request was approved.

3. He underwent a retirement physical on 9 March 1998, indicating that he had arthritis in both hands and forearms. On 20 July 1998 he was seen in the Neurology Clinic at Blanchfield Army Hospital at Fort Campbell, Kentucky, and was tested for carpal tunnel syndrome. His condition, however, was determined to be resulting from damage to the C8 (T1) radiculopathy, caused by his earlier neck injury. At the time of the examination, he was on terminal leave. Since his retirement was approved, he was informed that there was no reason to undergo another medical board, but he could submit his claim to the Department of Veterans Affairs (VA). The VA has granted him a 40 percent disability rating for his neck injury, and an 80 percent rating overall. He now works for the government and was informed that since he has an incorrect SPD (Separation Program Designator) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty), his previous time in federal service does not count for service.

4. The applicant provides a copy of his 31 August 1998 DD Form 214, a copy of an 18 July 1997 Total Army Personnel Command (PERSCOM) memorandum informing the commander of Blanchfield Army Community Hospital that the findings of the 9 July 1997 PEB had been approved, a copy of a PEB (Physical Evaluation Board) proceedings, a copy of a 26 January 1996 memorandum in which the applicant's commanding officer recommended that the applicant receive a medical board, a copy of a 9 March 1998 report of medical history, a copy of a 30 July 1998 consultation sheet, and a copy of a medical report from the Neurology Clinic at Blanchfield.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 31 August 1998. The application submitted in this case is dated 23 May 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant is a retired First Sergeant who served in various locations throughout the world. He has received numerous awards, to include the Master Parachute Badge, Air Assault Badge, Armed Forces Expeditionary Medal; and multiple awards of the Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal. His military education includes completion of personnel courses, the airborne course, infantry NCO (Noncommissioned Officer) course, airborne course, and the jump master course.

4. The applicant's records show that he entered on active duty in May 1976, and was released from active duty in May 1979. He served in the Army Reserve until 2 January 1981 when he enlisted in the Regular Army for four years. His active duty service was continuous until his retirement in 1998.

5. On 26 January 1996 the applicant's commanding officer requested that the applicant receive a medical board, and that he be reassigned to the Medical Holding Company throughout the Medical Evaluation Board (MEB) process. He stated that the applicant's condition has been diagnosed as a broken bone in his neck, and that he had a temporary profile. He stated that the applicant could not perform the duties of his MOS (Military Occupational Specialty) due to his medical limitations. He also indicated that the applicant could not perform duties in any other MOS. A 26 January 1997 note penned by a flight surgeon at the bottom of that request indicates that the applicant, in July 1995, suffered a fracture of the spinous process of T1, that he had been evaluated by orthopedics and neurosurgery due to non-union of his fracture, and that now with chronic pain he was unable to perform the duties of his MOS or those of a Soldier in general.
6. The applicant sustained an avulsion fracture of the spinous process at T1 after falling down some stairs in his home and striking his head on a refrigerator. He underwent an excision of his nonunited T1 spinous process fragment at Walter Reed Army Medical Center in early May 1996.

7. A DA Form 705 (Army Physical Fitness Test Scorecard) shows that the applicant passed the Army Physical Fitness Test (APFT) on 5 September 1996 with a perfect score of 300.

8. The applicant's NCO evaluation report for the 12-month period ending in December 1996 shows that he passed the Army Physical Fitness Test (APFT) in October 1996 with a score of 346 (on an extended scoring table).

9. On 5 February 1997 he was given a permanent profile for his neck injury, and was prohibited from wearing a helmet, carrying a ruck sack, or lifting anything over 20 pounds; and, from doing situps, pushups, and pullups.

10. In a 21 April 1997 memorandum to the PEBLO (Physical Evaluation Board Liaison Officer) at Blanchfield, the applicant's commanding officer stated that the applicant's disability as a result of his neck injury strongly impacted on his performance of duty. He stated that although his disability prevented him from fulfilling the requirements of his job, he continued to give everything that he could to the leadership and Soldiers of his company. He stated that the applicant should be medically retired.

11. In a 23 April 1997 memorandum to the PEBLO, the applicant's battalion commander recommended approval of the applicant's medical retirement, stating that he did not believe that he was physically capable of performing in any military position. He stated that he was convinced that his current physical status was greatly aggravated by his attempt to perform his duties as a first sergeant.

12. A MEB narrative summary shows that the applicant was evaluated for his neck pain, and his other conditions – low back pain, bilateral anterior knee pain, chronic left ankle pain and functional instability, and gastritis, on 12 May 1997. That summary indicates that the applicant had chronic neck pain since his surgery in May 1996, and that his pain was aggravated by activity. The examining physician indicated that the applicant had failed to improve significantly with numerous anti-inflammatories, and that he had developed a problem with gastritis secondary to anti-inflammatory use. He stated that the applicant was taking medications without significant relief, and had been treated in a pain clinic where he had numerous trigger point injections, which gave only temporary relief. The physician also commented on his other conditions.

13. The doctor stated that radiographs of the applicant's neck were unremarkable with the exception of post surgical changes consistent with the excision of a small fragment of the T1 spinous process; that radiographs of the lumbosacral spine and both knees were unremarkable; and that radiographs of the left ankle were unremarkable. He diagnosed the applicant's condition as chronic neck pain that was medically unacceptable. He determined that the applicant's other conditions were medically acceptable. He recommended that the applicant's case be forwarded to the PEB for consideration for medical separation.

14. On 2 June 1997 a Medical Evaluation Board determined that his chronic neck pain was medically unacceptable and recommended that he be referred to a PEB. The applicant agreed.

15. In a 27 June 1997 memorandum to the PEBLO, the applicant's battalion commander stated that the applicant was fully capable of performing in his MOS, indicating that after some leave and some rest, it appeared that the medication that he was taking was working. He stated that the constant pain that he suffered from had been minimized. He stated that he had personally spoken to the applicant and had played a round of golf with him on 25 June 1997.

16. In a 30 June 1997 memorandum to the PEBLO, the applicant's commanding officer stated that the applicant's disability as a result of his neck injury did not impact on the performance of his duties in his primary MOS. He stated that the applicant was capable of fulfilling all requirements asked of him and continued to be an asset to the leadership and Soldiers of his unit. He stated that the applicant should be given the opportunity to continue his service in the Army.

17. On 9 July 1997 a PEB determined that the applicant was fit for duty, and that he be returned to duty as fit. On 14 July 1997 the applicant concurred with the finding and the recommendation. On 18 July 1997 PERSCOM approved the findings of the PEB and so notified the commander of Blanchfield Army Community Hospital.

20. On 26 September 1997 the applicant requested that he be authorized to reenlist in the Army. The applicant's commanding officer stated that the applicant was fully qualified for reenlistment, and approved his request. The applicant reenlisted in the Army for two years on 30 September 1997.

21. The applicant's NCO evaluation report for the 12-month period ending in December 1997 shows that he passed the APFT in September 1997. His rater stated that he had outstanding mental toughness and continued to ensure mission accomplishment through extreme physical pain. His senior rater stated that the applicant should be promoted immediately and sent to the Sergeants Major Academy.

22. On 31 March 1998 orders were published releasing the applicant from active duty on 31 August 1998 and placing him on the retired list the following day.

23. A 12 June 1998 consultation sheet shows that he was given a provisional diagnosis of left and right carpal tunnel syndrome; however, was referred to neurology on 30 June 1998. He underwent testing – an electromyography, with the impression given of a C8 (T1) radiculopathy in BUE (both upper extremities) and bilateral low cervical pvm [?], right greater than left.

24. The applicant's DD Form 214 shows that he was retired under the provisions of Army Regulation 635-200, chapter 12 on 31 August 1998, with more than 20 years of active service. His separation code on that form is shown as "RBD."

25. Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. A decision is made as to the Soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

26. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

27. Title 10, United States Code, chapter 61, provides disability retirement or separation for 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.

28. Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of separation, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

29. Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on the DD Form 214, and indicates in pertinent part that a Soldier retired under the provisions of Army Regulation 635-200, chapter 12 will have a SPD code of "RBD" entered on his DD Form 214.

DISCUSSION AND CONCLUSIONS:

1. The evidence is clear. The applicant was medically fit to perform his duties as evidenced by the determination made by the PEB, which the applicant himself concurred in. The applicant's company commander and battalion commander both stated that his condition did not impact on his performance. He reenlisted subsequent to the July 1997 PEB, a further indication that he was fit for duty. His evaluation reports, before and after the PEB, show that he had no problems performing his duties, the last report in fact, containing a recommendation for promotion and assignment to a senior NCO course.

2. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his retirement. The diagnosis of his condition provided to him while he was on terminal leave apparently has been addressed by the VA, at least as the applicant has so indicated. The VA is the proper agency for this matter.

3. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

4. The applicant requested that he be retired. He was retired for length of service. He did not have any medically unfitting disability. Therefore, there is no basis for physical disability retirement or separation.

5. The applicant's SPD (separation code) on his DD Form 214 is correct. There is no error.

6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 August 2001. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__MDM__ __HOF__ __RTD __ DENY APPLICATION

1. The Board determined that 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 for correction of the records of the individual concerned.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  ___ Mark D. Manning____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003092542
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040316
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.