RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 JUNE 2005
      DOCKET NUMBER:  AR20040007342


      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. Robert Duecaster              |     |Chairperson          |
|     |Mr. Thomas Pagan                  |     |Member               |
|     |Mr. Michael Flynn                 |     |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 separation or
retirement, with the characterization of his discharge changed to
honorable.

2.  The applicant states that on 1 August 2003 the Department of Veterans
Affairs (VA) granted him a service-connected disability rating for a back
injury.  His private physician opined that he did not have any significant
pre-existing back condition.  The VA agreed that at the time of his entry
into the service his pre-service back condition had no known residuals,
since his pre-service disability percentage for his back condition was
zero, and no deduction was made from his 40 percent service-connected
disability rating.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), a copy of a letter to him from his
physician, a copy of a VA rating decision, and copies of medical documents
depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 January 1996.  The application submitted in this case
is dated    20 August 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 evidence submitted in this case is that furnished by the applicant.

4.  The applicant’s DD Form 214 shows that he entered on active duty for
training on 26 September 1995 and was released from active duty, discharged
from the Reserve of the Army, and returned to the Army National Guard of
Indiana on     29 January 1996, under the provisions of Army Regulation 635-
200, paragraph 5-11, for failure to meet procurement medical fitness
standards.  He had              4 months and 4 days of service.  His
character of service was uncharacterized.

5.  A 5 October 1995 medical report shows that the applicant had a
breathing problem while running.  The applicant indicated that he had no
history of asthma. Pulmonary function tests were negative.  Chest x-ray was
negative.

6.  Medical reports dated 16 October 1995 show that requests were made for
radiologic consultations of the applicant’s lower spine because of the
applicant’s complaint of low back pain.  The radiological reports were
negative.

7.  A 19 October 1995 medical record shows that the applicant was seen
because of a complaint of low back pain that had existed for seven days.
He stated that he was carrying another Soldier when he felt a pop in his
back.  He stated that he had a previous injury several years ago while
lifting an engine.

8.  A 31 October 1995 medical report shows that the applicant was
reevaluated for back pain.  Comments on that report indicate that the
applicant stated that a Soldier jumped on his back and he heard a “pop;”
that his condition existed prior to his service (EPTS) in that he injured
his back while carrying an engine block; and that his EPTS condition was
service aggravated.

9.  A 2 November 1995 medical report indicates that the applicant had a two
year history of low back pain, originally injuring his back while carrying
an engine block two years ago.  He had a Soldier jump on his back two weeks
ago.  He had pain in his back into his right thigh and complained of pins
and needles sensation.

10.  On 22 November 1995 the applicant received a temporary profile for
back pain – EPTS.  That profile report indicated that he was undergoing an
EPTS medical board, and that he was to undergo no further duty for training
purposes.

11.  A 28 November 1995 Statement of Medical Examination and Duty Status
shows that the applicant sustained a stress fracture to his left foot, that
his foot started turning black and blue and he went on sick call.  His
condition was diagnosed as stress fracture of three middle bones in his
left foot.  His injury was in line of duty.

12.  The first page of DA Form 4707, Entrance Physical Standards Board
(EPSBD) Proceedings, dated 22 November 1995, indicates that the applicant
originally injured his back while carrying an engine block a couple of
years ago, and that prior to entering the service, any type of heavy
lifting resulted in pain in his lower back.  There were no radiculopathy
symptoms.  Upon entering the service, military training aggravated his low
back pain.  The applicant stated that a Soldier jumped on his back which
resulted in a pins and needle sensation in his legs.  He was treated with
profiles, medications, and therapy with partial resolution of his symptoms.
 He had been steadily improving over the last several weeks.  X-rays of the
lower spine were within normal limits.  There was no fracture, dislocation
or degenerative change noted.  MRI was within normal limits. There was no
herniated nucleus pulposus or abnormalities noted.  His condition was
diagnosed as low back pain, EPTS.  The EPSBD stated that the applicant had
an EPTS condition that would preclude satisfactory completion of basic
training, and that the applicant had chosen an EPTS discharge secondary to
his low back pain and inability to complete training. The EPSBD stated that
the applicant should be discharged from the service expeditiously for his
EPTS condition.  The EPSBD proceedings were approved on 27 November 1995.

13.  The second page of the above-mentioned proceedings is not available to
the Board.  That page shows the options available to the service member:

      a.  Concur with the proceedings and request to be discharged without
delay;


      b.  Concur with the proceedings and request to be retained on active
      duty;


      c.  Disagree with the proceedings because the condition did not exist
prior to service, and request the case be returned to the medical approving
authority for reconsideration; and


      d.  Disagree with the proceedings because the condition was not
disqualifying on entry and was aggravated by service, and request the case
be returned to the medical approving authority for reconsideration.

That page also provides for action by the unit commander and action by the
discharge authority.

14.  On 11 March 1996, the applicant, then assigned to Headquarters and
Headquarters Battery, 38th Division Artillery, a National Guard unit in
Indianapolis, made a statement to the effect that he was injured during an
exercise for physical training at Fort Leonard Wood, Missouri, when a
Soldier jumped on his back.  He stated that he was sent to the medical
clinic where he was seen by a physician assistant.  He told that person
that he had injured his back slightly about two years ago, but after
approximately two weeks he was returned to work, and had no complications
since then.  The physician assistant  (PA) gave him some medication and a
profile.  After several trips to the clinic, he was referred to orthopedics
at the hospital, and was again seen by a physician assistant, who stated
that he would be discharged because he had reinjured his back.  The
diagnosis was pulled tendons and ligaments.

15.  Included with his application are copies of medical reports apparently
dating from a previous enlistment in the Army.  Those reports, dated in
1986 and 1987, show that he was treated at one time for depression, and
that he was also treated for pain in his knees.

16.  In a 9 December 2002 letter to the applicant, a physician in
Indianapolis stated, in pertinent part, “The changes that I see on your
recent MRI are certainly consistent with a seven-year-old injury and to
assume that you had a pre-existing condition when entering the military is
a little bit judgmental.  Most of our society  has experienced transient
back pain that resolves spontaneously without medical or surgical
intervention and I believe that you fell into that category before entering
the military.  In conclusion I feel that there is a high probability that
you hurt your back and created a cascade of events that have led to facet
arthropathy, but I do not believe that you had any significant pre-existing
condition as your disk spaces have all maintained good health.”

17.  On 1 August 2003 the VA awarded the applicant a 40 percent service-
connected disability rating for residuals of back injury effective 21
October 1997, stating that service connection was granted because his
condition, which existed prior to military service, permanently worsened as
a result of service.  The VA indicated that pre-service percentage was
normally deducted before assigning any service-connected evaluation less
than 100 percent; however, since the pre-service percentage was zero, no
deduction was necessary.  The VA also granted the applicant a zero percent
disability rating for residuals of stress fracture, to a joint in his left
foot.

18.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel from active duty.   Paragraph 5-11 provides for the
early separation (within the first six months) of those individuals who
were not qualified under procurement medical standards, who manifested
symptoms of medical problems that would have made them not qualified under
procurement medical standards or who became not qualified prior to entry.
Although a Soldier in such circumstance has a right to request retention,
an individual has no right to be retained.  The retention or separation
decision is within the cognizance of the appropriate discharge authority.
Except in certain extraordinary cases, uncharacterized entry level
separation is mandatory for all individuals who are in an entry level
status (within the first 180 of active duty) at the time separation
processing is commenced.

19.  Title 38, United States Code, sections 310 and 331, permits the VA to
provide treatment and to award compensation for disabilities which were
incurred in or aggravated by active military service.  An award of a VA
rating does not establish entitlement to medical retirement or separation.
The VA is not required to find unfitness for duty.  Operating under its own
policies and regulations, the VA awards ratings because of its
determination that 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence that the applicant submits shows that the applicant
complained of back pain within three weeks after being ordered to active
duty for training, apparently because a Soldier jumped on his back.  That
evidence also shows that the applicant had injured his back prior to his
military service, that he had a two year history of low back pain, and that
upon entering the military service, military training exacerbated his pre-
existing low back condition.

2.  The EPSBD indicated that his condition, while improving, precluded
satisfactory completion of basic training and recommended that he be
discharged.  The EPSBD stated that his condition existed prior to his
service, and that the applicant had chosen to be discharged because of his
EPTS condition.
3.  Notwithstanding the 2002 opinion put forth by the doctor in
Indianapolis and the 2003 VA decision regarding his condition, the evidence
indicates that the applicant’s condition existed prior to his military
service, and that the applicant himself agreed with the findings of the
EPSBD, and although he could have opted otherwise, he requested to be
discharged because of his EPSBD condition.  His discharge because of his
EPTS condition with an uncharacterized character of service was correct and
in accordance with regulatory authority.   The applicant has submitted
neither probative evidence nor a convincing argument in support of his
request.

4.  Consequently, the applicant’s request to correct his record to show
physical disability retirement or separation, and to change the
characterization of his discharge to honorable, is not warranted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 January 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           28 January 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

___RD __  ___TP  __  ___MF__  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.




                                  ____ Robert Duecaster_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007342                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050623                                |
|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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