RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 JUNE 2005
      DOCKET NUMBER:  AR20040008277


      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. Joe Schroeder                 |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests physical disability retirement.

2.  The applicant states that the injury he received in the military ended
his military career, and the severity of the injury has gotten worse over
the years and has now ended his civil service career.  The Army diagnosed
his condition only as mechanical low back pain without radiculopathy or
muscle spasms.  His condition has subsequently been diagnosed as stenosis
of the spine, degenerative disk disease, annular bulging and facet joint
hypertrophy at L4-L5 and L5-S1.  His disability will not allow him to
obtain or maintain employment.  He is currently filing for social security
and for an increase in his disability benefits from the Department of
Veterans Affairs (VA).

3.  The applicant provides copies of his military and civilian medical
records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 September 1996.  The application submitted in this
case is dated 24 September 2004.

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 limitations 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 enlisted in the Army for 4 years on 19 May 1992,
completed training as a petroleum supply specialist, and in October 1992
was assigned to an engineer battalion in Germany.  He returned to the
United States in October 1994 and in November of that year was assigned to
a support battalion at Fort Riley, Kansas.

4.  A statement of medical examination and duty status shows that the
applicant slipped on ice and fell on 4 January 1995, while working in the
motor pool at Fort Riley, injuring his back.  He was treated as an
outpatient at Irwin Army Community Hospital at Fort Riley.  His injury was
in line of duty.

5.  A 5 January 1995 radiologic report indicated a normal lumbar spine.

6.  The applicant was seen and treated for low back pain on various
occasions in 1995 and 1996.  On 16 January 1995 he complained of recurrent
back pain.  On 21 February 1995 he complained of muscle spasms and pain on
movement.  On 31 May 1995 he complained that his back pain prevented him
from doing physical training.  On 24 October 1995 he complained of low back
pain after falling off a fork lift, stating that his back pain had
increased, was constant, and would not go away.  He was given a temporary
profile for his low back pain on    27 October 1995.

7.  An 18 January 1996 report of a radionuclide bone scan indicated no
abnormal tracer uptake in the bony structures of the lumbo-sacral
vertebrae.

8.  On 25 January 1996 the applicant was transported by ambulance to Irwin
Army Community Hospital because of his inability to move because of his
back pain.  The medical report indicates that the applicant stated that he
had injured his back one week ago.  On 25 January 1996 the applicant was
given a permanent P-3 profile for mechanical low back pain.

9.  A 22 March 1996 report of medical examination shows that the examining
physician recommended that the applicant be referred to a Medical
Evaluation Board (MEB) for his back pain.

10.  A MEB narrative summary indicates that the applicant continued to have
low back pain for his injury and had been seen multiple times by physical
therapy.  The report shows that the applicant’s P-3 profile prevented him
from repeated forward bending, double leg raises, flutter kicks, physical
training, and heavy lifting greater than five pounds.  It indicates that
the applicant denied any complaints consistent with radiculopathy.  His
condition was diagnosed as mechanical low back pain.  He was referred for a
MEB.  An MEB recommended that the applicant be referred to a Physical
Evaluation Board (PEB) for his mechanical low back pain.

11.  On 16 August 1996 a PEB determined that his disability – mechanical
low back pain without radiculopathy or muscle spasm with characteristic
pain on motion, VASRD (Department of Veterans Affairs Schedule for Rating
Disabilities), Code 5295, prevented him from performing his duties
satisfactorily.  The PEB found him physically unfit and recommended that he
be discharged with severance pay with a disability rating of 10 percent.
The applicant concurred.  The PEB proceedings were approved on 20 August
1996.

12.  The applicant was discharged because of his disability on 18 September
1996.  He received $10420.80 in severance pay.

13.  The applicant’s records subsequent to his discharge show that the
applicant was employed by the government as a custodial worker at Fort
Riley, and had been treated on numerous occasions for his back pain, to
include treatment at the Emergency Department, Geary Community Hospital in
Junction City, Kansas on a number of instances.

14.  An emergency room note from the Mercy Health Center of Manhattan,
dated 17 March 2002, indicates that the applicant came to the emergency
department  complaining of low back pain, stating that on 14 March 2002 he
was moving some furniture at his home when he experienced some pain in the
lower lumbar area, and that it waxed and waned over the past 24 hours and
had gotten worse.
15.  A 16 August 2002 medical report that indicates that the applicant
complained of low back pain for the past 2 ½ weeks, that he fell at work,
has been agitated since then, and his back pain has progressively worsened.


16.  An 11 July 2002 MRI of the lumbar spine indicates – Disc space
narrowing and loss of normal hydration L4-L5 and L5-S1.  Annular bulging
and facet joint hypertrophy at L4-L5 are causing mild spinal stenosis.

17.  A 19 November 2003 MRI of the lumbar spine shows an asymmetric bulging
L5-S1 disc which might be impinging slightly on the right S1 nerve root;
and degenerative bulging disc at L4-L5, which did not appear to be
producing nerve root impingement or stenosis.

18.  On 5 March 2004 an Army doctor, the Chief of Preventive Medicine
Service, provided a fitness for duty evaluation report on the applicant.
He stated that he had reviewed the applicant’s military and civilian
medical records as well as the notes provided by this civilian primary care
provider and civilian orthopedic specialist.   He stated that he also
performed a complete physical examination on the applicant.  The doctor
indicated stated that the applicant’s original diagnosis was mechanical low
back pain, and that subsequent MRIs (magnetic resonance imaging) revealed
degenerative disk disease.  He stated that the applicant had been taking a
variety of anti-inflammatory and analgesic medications through the VA
system during the past 10 years.  He stated that the applicant complained
of daily pain for years, with flares associated with abrupt torso movement,
and that he had occasional radiation to bilateral posterior thighs.  He
also indicated a history of infrequent spontaneous loss of urine/stool,
which had been further evaluated with MRI and repeat neurological
examination.  He indicated that his civilian orthopedist recommended
continued conservative management for his condition, to include physical
therapy, oral analgesic anti-inflammatory agents, and periodic epidural
steroid injections.  He stated that both his primary care physician and
orthopedist recommended changes in job duties to alleviate daily pain and
flares.  The doctor stated that the applicant’s work duties had been
modified in an attempt to accommodate his physical limitation needs.  He
concluded by stating that the applicant was not fit for duty in his current
position.

19.  On 25 March 2004 the applicant underwent a medical examination at a VA
medical clinic.  His condition was diagnosed as degenerative disc disease
lumbar spine.  There were no neurological deficits or dysfunction noted,
and on flare ups dysfunction was primarily related to muscle spasm in the
back.  On 20 August 2004 the VA informed the applicant that it was still
processing his application for compensation.

20.  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.

21.  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.

22.  Congress established the VA Schedule for Rating Disabilities (VASRD)
as the standard under which percentage rating decisions are to be made for
disabled military personnel.  Percentage ratings in the VASRD represent the
average loss in earning capacity resulting from diseases and injuries.  The
ratings also represent the residual effects of these health impairments on
civil occupations.  Diagnostic code numbers appearing opposite the listed
ratable disabilities in the VASRD are arbitrary numbers for the purpose of
showing the basis of the evaluation assigned and for statistical analysis
by the VA, and extend from 5000 to a possible 9999.  Code 5295 indicates
disability ratings for lumbosacral strain, ranging from 40 percent for
severe strain, 20 percent with muscle spasm on extreme forward bending,
loss of lateral spine motion, to        10 percent for strain with
characteristic pain on motion.

23.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

24.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for disabilities which were incurred in or aggravated
by active military service.

DISCUSSION AND CONCLUSIONS:

1.  The medical evidence of record supports the determination that the
applicant's unfitting condition was properly diagnosed and rated at the
time of his discharge.  The applicant's disability was rated in accordance
with the VA Schedule for Rating Disabilities.  His separation with
severance pay was in compliance with law and regulation.

2.  The applicant was discharged because of his physical disability,
mechanical low back pain, and received a 10 percent disability rating.  The
applicant concurred in the determination and the rating recommended by the
PEB.  He does not now dispute the determination or the disability rating
given by the PEB in 1996, only stating in effect, that the rating should be
changed because his disability has worsened.  A Soldier’s disability rating
is determined based on his medical condition at that point in time, before
he can be medically discharged.  The Army does not adjust the percentage of
rating because a Soldier’s condition changes subsequent to separation.

3.  The VA, in accordance with its own policies and regulations, awards
compensation solely on the basis that a medical condition exists and that
said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  The VA is not required to find
unfitness for duty.  Operating under its own policies and regulations, the
VA awards ratings because a medical condition is related to service, i.e.,
service-connected.  Furthermore, the VA can evaluate a veteran throughout
his lifetime, adjusting the percentage of disability based upon that
agency's examinations and findings.

4.  There is no error or injustice in this case.  The applicant’s condition
was properly rated and he was discharged accordingly.  He has made a claim
to the VA because of his service-connected disability.  The VA is the
appropriate agency to handle his request.  His request for physical
disability retirement is not granted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 September 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    17 September 1999.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___LF  __  ___JM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  ______Joe Schroeder_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008277                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050628                                |
|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.                      |                                        |


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