RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 FEBRUARY 2005
      DOCKET NUMBER:  AR20040002480


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Thomas Pagan                  |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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.  The applicant requests that his records be corrected to show that he
was retired by reason of disability in 2004 rather than separated by reason
of disability.

2.  The applicant states that he does not believe that the Army gave
“proper weight to [his] disabilities” and feels that he warrants a
disability rating of 30 percent or higher.  He states that a review of his
service medical records will show that his condition warranted a higher
rating than 10 percent and that a 30 percent rating would be “more fair.”

3.  The applicant states that he suffers from “neuro logic [sic] problems
secondary to [his] back with a moderate to severe level of pain….”

4.  The applicant provides a copy of his service medical records and a copy
of his Army disability rating documents.

CONSIDERATION OF EVIDENCE:

1.  Documents available to the Board indicate that the applicant was a
member of the United States Army Reserve with nearly 11 years of military
service when he was ordered to active duty in support of Operation Enduring
Freedom on
1 February 2003.  He was an interrogator serving in pay grade E-6 at the
time.

2.  The applicant’s medical summary, completed as part of his MEB (Medical
Evaluation Board), and medical documents available to the Board, indicate
that the applicant initially injured his back while lifting heavy objects
in his civilian job with UPS (United Postal Service) in November 1999.  He
underwent physical therapy and when he continued to experience numbness in
his left lower extremity, he underwent a microdiscectomy of L4-L5 in
February 2000.

3.  A May 2002 physical examination noted the applicant’s back operation,
but found him medically qualified for service.  His only profile was a “2”
for his eyes.  The evaluating physician did recommend that the applicant
lose weight.

4.  The applicant was ordered to active duty in February 2003 and arrived
overseas in March 2003.  According to a line of duty determination
document, in April 2003 the applicant exacerbated his lower back pain while
lifting some Army equipment.  He was issued a temporary profile for low
back pain on 27 April 2003.

5.  In June 2003 medical personnel overseas recommended that the applicant
be evacuated “to home station for long-term management of” his back
condition.  The document recommending his evacuation noted that the
applicant reinjured his lower back in April 2003 when he experienced low
back “pain shooting down the left leg while lifting tents in Kuwait.”  The
applicant’s temporary profile was extended an additional 30 days on 30 July
2003.

6.  A July 2003 MRI of the lumbar spine noted that the lumbar spine
demonstrates some narrowing of the L4 and L5 interspaces and that there was
a:

      small left paracentral disc protrusion at the L4 level which results
      in some mild compromise of the left lateral recess at the L4 level and
      clinical correlation regarding the presence of a left L5 radiculopathy
      is recommended.  Mild facet arthropathy at the L4 and 5 levels.  Small
      central disc protrusion at the lumbosacral level which does not result
      in any significant central canal, lateral recess or foraminal
      stenosis.  MRI of the lumbar spine is otherwise negative.

7.  A September 2003 neurosurgery consult noted that the applicant’s left
leg pain, which:

      has been somewhat more pronounced, but since he has been on light duty
      in these past few weeks, the left leg pain has improved somewhat.  On
      neurologic examination, he bends to 90 degrees with relative ease, but
      beyond that point he has pain.  He can walk on his heels, toes, and
      stairs, and the reflexes at the knees and ankles are equal and
      symmetric, and the toes are downgoing.  Sensory exam was normal.

8.  Surgery was not recommended and the applicant’s temporary profile was
extended again in September 2003.

9.  In November 2003 the applicant underwent a MEB.  His chief complaint
was recorded as “lower back pain with radiating pain down left lower
extremity.”  The evaluating physician noted that the applicant reported
lower back pain and left leg pain with occasional numbness in left leg with
certain movements and activities, especially running, wearing heavy
equipment, sit ups, and carrying weights greater than 20 pounds.  He denied
any bowel or bladder changed and had no complaint of saddle anesthesia.
His pain was reported as frequently moderate and occasionally severe.  He
diagnosis was chronic lower back pain secondary to degenerative disk
disease and he was referred to a Physical Evaluation Board (PEB).

10.  An informal PEB convened on 11 December 2003 and concluded that the
applicant’s low back pain without neurologic or electro diagnostic
abnormality rendered the applicant unfit.  The PEB noted that the
applicant’s combined thoracolumbar range of motion was 142 degrees.  The
PEB recommended separation with a disability rating of 10 percent under
VASRD (VA Schedule for Rating Disabilities) Code 5243, and entitlement to
severance pay if otherwise qualified.

11.  The applicant concurred with the findings and recommendation of the
informal PEB and waived his right to a formal hearing.

12.  On 17 February 2004 the applicant was honorably discharged by reason
of disability.  He received more than $25,000.00 in disability severance
pay.

13.  VASRD Code 5243 provides for a 10 percent rating when the combined
range of motion of the thoracolumbar spine is greater than 120 degrees but
not greater than 235 degrees.  A 20 percent rating is appropriate if the
combined range of motion of the thoracolumbar spine is not greater than 120
degrees, while a 30 percent rating was appropriate when the forward flexion
of the cervical spine was 15 degrees or less, or there is favorable
ankylosis of the entire cervical spine.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides no evidence or documentation with his
application to this Board, which substantiates his contention that the Army
did not properly evaluate his medical condition at the time of his
separation or that his condition warranted a rating high enough to result
in disability retirement rather than separation.

2.  It is noted that the applicant would have been involved in his
disability processing and would have had the opportunity to raise
objections at various stages of the process.  The evidence, however, shows
that the applicant concurred with the findings and recommendation of the
informal PEB, thereby confirming his agreement with the recommendation that
he be separated by reason of disability with a disability rating of 10
percent.  He has submitted no evidence that indicates otherwise.  Had he
believed that the rating was unfair or unjust he could have requested a
formal hearing.  The fact that he did not further supports a conclusion
that his back condition was properly evaluated and that the rating was
appropriate.

3.  The evidence available to the Board indicates that the applicant’s
combined thoracolumbar range of motion was 142 degrees, which was well
within the guidelines to justify a 10 percent rating.  There was no
evidence in the applicant’s service medical records which would have
justified a higher rating.  He himself admitted that he experienced
occasional numbness in his left leg only with certain movements and
activities and that his left leg pain improved with limited duty.

4.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JP___  ___TP __  ___KL___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                                  _____ Jennifer Prater_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002480                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050215                                |
|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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