RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 MARCH 2005
      DOCKET NUMBER:  AR20040002753


      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. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Susan Powers                  |     |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:

The applicant made no request or statements, but deferred to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s records be corrected to show that
he was constructively continued on active duty and retired with 20 years of
actual and constructive service on 27 December 2004; or in the alternative
that he be returned to active duty in a MOS (military occupational
specialty) which he can perform for 1 year and 5 months until he has 20
years of active service for retirement; or in the alternative that he be
retired because of physical disability with a 30 percent disability rating
as of the date of his discharge.

2.  Counsel states that the applicant served in the Army for 18 years and
          7 months and was discharged because of his disability, receiving
severance pay. He underwent a Medical Evaluation Board (MEB) on 31 March
2003.  The MEB determined that he had chronic lower back and neck pain.
Conversion disorder was speculated.  The applicant requested that he be
continued on active duty; however, he was referred to a Physical Evaluation
Board (PEB).  The applicant formally requested continuation on active duty
(COAD).  On 14 May 2003 he was found psychiatrically fit with no evidence
of conversion disorder.

      a.  On 3 June 2003 an informal PEB found the applicant unfit and
recommended that he receive a 10 percent disability rating for chronic
lower back pain and a 10 percent rating for chronic neck pain.  He was
discharged because of his physical disability.  The applicant accepted the
result under duress.  The question of whether duress existed in his
concurrence of the PEB results is indicated by his continued quest to
obtain a compassionate reassignment, his rebuttal of the MEB findings, and
his expression of his full understanding of the implications of a 20
percent disability rating, and its negative impact on himself and his
family.

      b.  There is no way that the applicant voluntarily accepted the 20
percent determination.  There is no evidence that his request for
compassionate reassignment was considered by his command.  There is no
evidence that his COAD request was considered by the informal PEB or by his
command.

      c.  Regarding the MEB, counsel states that there was no conversion
disorder; the upper and lower back pain included radiculopathy; chronic
knee pain was noted, but not considered unfitting; the lumbar region had
clinically significant defects as noted by a MRI (magnetic resonance
imaging); and secondary to those defects was parasthesia.

      e.  Counsel states that a 20 percent rating is proper for his lower
back condition given the limitations on range of motion and parasthesia,
and could also be considered as a 20 percent rating because of his
degenerative disk disease.  He states that the radiculopathy associated
with his upper back condition could also provide a basis for a 20 percent
disability rating, and that his chronic knee pain could have been evaluated
as 10 percent disabling.

3.  Counsel provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s DD Form 214 shows that he was discharged because of his
physical disability on 29 July 2003 and received severance pay of
$65,030.40.  He had 18 years, 7 months, and 2 days of service.  Orders
published effecting his discharge show that he received a 20 percent
disability rating.

2.  The applicant submits a copy of a report of medical history and a
report of medical examination, dated in September 2002.

3.  In a 23 September 2002 memorandum to the Brigade surgeon, Division
Surgeon, and his commanding officer, he requested that the MEB processing
be stopped and that he be granted a compassionate reassignment or a MOS
(military occupational specialty)/Medical Retention Board (MMRB).

4.  In a 24 September 2002 memorandum to a command sergeant major (CSM),
the applicant requested his assistance in obtaining a compassionate
reassignment from Fort Hood to Fort Sill, Oklahoma.  He stated that he was
in the process of going through a MEB because of a chronic history of back,
neck, and knee pain.

5.  On 9 October 2002 the applicant requested a compassionate reassignment
or a permanent change of station from Fort Hood to Fort Sill because of his
chronic medical problems.  He stated that he had talked with the Division
surgeon, who informed him that if he could get a letter from the battalion
command sergeant major that he could assume duties at Fort Sill under his
medical conditions, then they would stop the MEB and work on a
compassionate reassignment.

6.  E-mails in September and October 2002 show his continued efforts to
obtain a compassionate reassignment.
7.  A 10 October 2002 radiological examination report indicated that the
applicant had mild to moderate spinal canal stenosis at the level of L4-L5,
mild spinal canal stenosis at level of L5-S1, and mild spinal canal
stenosis at level of L3-L4.

8.  On 31 March 2003 a MEB determined that he did not meet the medical
standards for retention in the Army because of his chronic lower back pain
and chronic neck pain.  In an addendum to the MEB, a staff psychiatrist
stated that the applicant did not have a mental disorder.  The MEB
recommended that he be referred to a PEB.  The three pages submitted by
counsel following the MEB Proceedings (DA Form 3947), are copies that are
too light to decipher.

9.  The applicant did not agree with the MEB findings and recommendation,
and stated that he would like to finish his Army career because he, his
wife, and his children have medical conditions requiring continued care.
He stated that even with his profile he could still be a benefit to the
Army.  The applicant requested continuance on active duty.

10.  On 28 March 2003 his appeal was considered and the report of the board
was forwarded to a PEB by the Deputy Commander for Clinical Services at
Darnall Army Community Hospital at Fort Hood, Texas.  That official also
stated that the applicant’s profile limitations prohibited wearing of the
Kevlar helmet and lifting more than 10 pounds.  He stated that the
applicant had ongoing pain problems and was followed by the pain clinic.
He stated that the applicant was not able to satisfy conditions in
paragraph 3a of his request for COAD, e.g., able to maintain himself in a
normal military environment without the environment adversely affecting his
health or requiring extensive medical care.

11.  On 15 April 2003 the applicant appealed the MEB dictation of a MEB
physician, stating that he was still receiving therapy treatments on his
back, neck and knee, and was showing improvement.  He stated that the above-
mentioned doctor stated that she would speed up the dictation for the MEB
because of her pending deployment to Korea.  He stated that another doctor
should have followed-up on the dictation after the final outcome at the
pain control clinic.  He stated that he had over 18 years of service; and
the MEB should consider reclassification so he could retire in November
2004.  He stated that a chiropractor indicted that he would need further
treatments.  He cited the medications that he was taking.

12.  On 6 June 2003 a PEB recommended that the applicant received a 10 per
cent disability rating for chronic lower back pain, without neurological
abnormality or documented chronic paravertebral muscle spasms on repeated
examinations, with characteristic pain on motion; and a 10 percent rating
for chronic neck pain.  The PEB stated that regulatory guidance contained
in Army Regulation 635-40, paragraph 8-24f, restricts the maximum rating
for pain, regardless of how many separate anatomical sites, to 20 percent.
The PEB found that the applicant was physically unfit and recommended that
he be separated with a 20 percent disability rating.  On 10 June 2003 the
applicant concurred and waived a formal hearing of his case.

13.  In an undated memorandum to his counsel, the applicant stated that two
senior noncommissioned officers harassed him until he signed the documents
separating him from the Army.

14.  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 (MEBs), 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.

15.  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.

16.  Army Regulation 635-40 also states that a Soldier will often be found
unfit for any variety of diagnosed conditions which are rated essentially
for pain.  Inasmuch as there are no objective medical laboratory testing
procedures used to detect the existence of or measure the intensity of
subjective complaints of pain, a disability retirement cannot be awarded
solely on the basis of pain.

17.  Army Regulation 635-40 states that certain Soldiers who are eligible
for retirement or separation because of physical disability may be
continued on active duty.  It notes that the primary objective of this
program is to conserve manpower by effective use of needed skills or
experience.  A Soldier who is physically unqualified for further active
duty has no inherent or vested right to be continued on active duty.  To be
considered for continued active duty a Soldier must be found unfit, capable
of maintaining one’s self in a normal military environment without
adversely affecting one’s health and the health of others and without undue
loss of time from duty for medical treatment, physically capable of
performing useful duty in a specialty for which he or she is currently
qualified or potentially trainable.  In addition to the preceding, an
individual who has 15 years but less than 20 years, or is qualified in a
critical skill or shortage specialty, or disability as result of combat,
may also be considered for continued active duty.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant’s contentions, neither he nor counsel has
provided evidence to show that the ratings recommended by the 6 June 2003
PEB were incorrect or improper.  The applicant accepted the findings and
recommendations of the PEB and waived a formal hearing.  Notwithstanding
his statement and counsel’s contention, there is no evidence that he
accepted the PEB findings and recommendations under duress.  The
applicant's disability was properly rated and his separation with severance
pay was in compliance with law and regulation.  Consequently, his request
for physical disability retirement with a 30 percent disability rating is
not granted.

2.  The PEB found that the applicant was physically unfit to perform his
duties in his grade and specialty.  He was discharged with severance pay.
He did not have 20 years of active federal service at the time of his
discharge.  His discharge was effected in accordance with applicable law
and regulation.  There are no provisions to grant him constructive service
credit to allow him to retire with 20 years of active federal service, and
neither the applicant nor counsel has provided any good reason to do so.
His request for constructive service credit is denied.

3.  The Board notes the applicant’s request to return to duty in a
specialty in which he can perform for one year and five months until
retirement.  His request is not granted.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___PM __  ___SP __  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.





                                  ______Melvin Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002753                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050329                                |
|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.       |108.10                                  |
|2.                      |136.01                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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