RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 July 2004
      DOCKET NUMBER:   AR2004100143


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy       |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be changed to a disability
discharge with retroactive pay.

2.  The applicant states that he should have been discharged in accordance
with Department of Defense Directive (DODD) 1332.18 (Separation or
Retirement for Physical Disability) and DODI 1332.38 (Physical Disability
Evaluation).  He was discharged because of a medical condition that caused
him not to be able to perform his military job.

3.  The applicant provides his honorable discharge certificate; orders
assigning him to the Retired Reserve; a Comprehensive Testing and Closing
Summary from the Mississippi Department of Rehabilitation Services dated 8
August 2003; a DA Form 2173 (Statement of Medical Examination and Duty
Status) dated     20 May 1995 with four related documents (a DD Form 689
(Individual Sick Slip); a Chronological Record of Medical Care; a
memorandum, Subject:  Report of Investigation, dated 9 August 1995; and a
Line of Duty Investigation Administrative Cover Sheet); and a billing
statement from Richland Primary Care dated 25 May 1995.

4.  The applicant also provides an untitled document, dated 9 August 2000,
indicating the applicant has chronic lower back pain, was not able to
perform the standard Army Physical Fitness Test (APFT) but was able to
perform an alternate APFT, and that his condition was unknown but his
physical condition could improve with physical therapy, tobacco cessation,
and weight reduction; three documents from the Mississippi Employment
Security Commission (one undated, one with a mailing date of 6 June 2002,
and one with a mailing date of   7 June 2002); results of an MRI (magnetic
resonance imaging) dated 27 January 1997; results of an MRI date of
examination 21 May 1997; results of an MRI date of examination 6 May 1999;
results of an MRI dated 26 July 2000; and DODD 1332.18.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Regular Army, the U. S. Army
Reserve, and the Army National Guard (ARNG), the applicant reenlisted in
the ARNG on 29 June 1994.  He was awarded military occupational specialty
(MOS) 63T (Bradley Fighting Vehicle System Mechanic) effective 12 September
1997 (he had trained in this MOS years earlier).  However, five
Noncommissioned Officer
Evaluation Reports from May 1966 through November 2000 show he performed
duties in MOS 68H (Aircraft Pneudralics Repairer).

2.  On 20 May 1995, while taking the APFT during inactive duty training,
the applicant experienced cramping in the right groin and lower back.  The
Chronological Record of Medical Care provided by the applicant indicated
his pain was radiating from the right groin area to the right side and
lower lumbar region of his back.  He had not done any warm-up prior to the
APFT.  He was diagnosed with muscle cramps.

3.  An MRI dated 27 January 1997 shows the applicant had a partial
desiccation of the L4-5 and L5-S1 intervertebral discs.  A right
paracentral disc protrusion was present at L5-S1.  The remainder of the
lumbar levels were unremarkable.  There was no evidence of spinal stenosis.
 The vertebral marrow signal was within normal limits.

4.  An MRI performed on the applicant on 21 May 1997 revealed a small disc
protrusion at the L5-S1 levels in the midline and extending to the right
and disc degeneration at L4-5 associated with bulging.

5.  An MRI performed on the applicant on 6 May 1999 revealed some degree of
water loss due to disc degeneration at L4-5 and L5-S1.  Bulging of the disc
with small disc protrusion on the right side was demonstrated at L4-5 with
a slight effacement of the thecal sac.  A bulging disc with a small disc
protrusion on the right side was also demonstrated at the L5-S1 level (also
seen on 21 May 1997 MRI) with no significant change.  T10-11 disc spaces
also demonstrated a small disc protrusion on the left side.

6.  On 9 December 1999, the applicant was given a temporary profile for
failing his cardio-vascular examination due to high serum cholesterol.  He
was given assignment limitations of no crawling, stooping, running,
jumping, or marching for periods greater than 1 minute; no overhead work;
no strenuous physical activities; and physical training at own pace.

7.  By memorandum dated 16 June 2000, a Medical Duty Review Board (MDRB) on
the applicant was requested.

8.  An MRI dated 25 July 2000 indicated minimal desiccation of the L4 and
L5 discs.  A soft tissue protrusion from the L4 level posteriorly suggested
an early herniation of the nucleus pulposus at L4.

9.  On 13 September 2000, the applicant was given a permanent profile due
to low back pain.  His only listed assignment limitations was "Unable to do
any APFT."

10.  An unidentified medical document dated 27 September 2000 indicated
that the applicant had stated he was unable to run or walk for long
distances.  It also stated, "In order to be retained he must walk, run,
swim, or ride a bike to meet PT requirements.  If [he] cannot perform
these, then he should be separated."

11.  The complete MDRB packet with determination is not available; however,
by memorandum dated 5 December 2000 the applicant was notified that the
MDRB determined he was a non-deployable mobilization asset due to his
medical condition and recommended separation.  On 9 December 2000, the
applicant indicated that he fully understood the MDRB's finding and also
understood that he could be separated from the Mississippi ARNG.  He did
not wish to submit an appeal of the MDRB's finding.

12.  The applicant's last two NCOERs, for the periods ending November 1999
and November 2000, rated his competence as "needs improvement" but noted
only that his current medical conditions prevented him from attending duty
MOS school.  No comments were made that he could not perform his duties.
On both NCOERs, his senior rater rated his overall performance as
"successful."

13.  On 28 December 2000, the applicant was discharged from the ARNG and
transferred to the Retired Reserve after completing 15 years, 5 months, and
    15 days of creditable service for retired pay due to being medically
unfit for retention.

14.  The applicant's ARNG Retirement Points History Statement shows that he
completed a qualifying year for retirement for retirement years ending
(RYEs)      28 June 1995, 28 June 1997, 28 June 1999, and 28 June 2000.  It
shows he failed to complete a qualifying year during RYE 28 June 1996 (but
did earn        34 retirement points) and failed to complete a qualifying
year during RYE          28 June 1998 by one point (earning 49 points).

15.  The applicant was issued a notification of eligibility for retired pay
at age      60 with 15 years service on 17 January 2001.

16.  Army Regulation 635-40 governs the evaluation for physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  It states that, while the ability of a soldier to
reasonably perform his
duties in all geographic locations under all conceivable circumstances is a
key to maintaining an effective and fit force, this criterion will not
serve as the sole basis for a finding of unfitness.

17.  Army Regulation 635-40, chapter 8 outlines the rules for processing
through the disability system soldiers of the Reserve components who are on
active duty for a period of less than 30 days or on inactive duty training.
 A change in the law in 1986 provided for disability processing of soldiers
who incur or aggravate an injury or disease in the line of duty while
performing inactive or active duty training.  Referral for processing does
not mean an automatic entitlement to disability compensation.  Once
referred, a determination must be made whether the disease was the
proximate result of performing duty.  Proximate result establishes a casual
relationship between the disability and the required military duty.

18.  Army Regulation 635-40 implements the policies and procedures outlined
in DODD 1332.18 and DODI 1332.38.

19.  National Guard Regulation 40-501, chapter 17 establishes the State
MDRB (SMDRB) process, a process for evaluation of all ARNG soldiers who may
become unfit to maintain their MOS or duty assignment or unfit to maintain
membership in the ARNG.  It states that soldiers shall be entered into this
process when they are believed to not meet the standards for MOS or duty
retention.  During the initial medical evaluation a physician designated
and supervised by the State Surgeon will review all pertinent medical
information including a commander’s statement relative to the soldier’s
capability of performing his/her assigned duty and may authorize special
examinations and consultations as necessary to fully define the soldier’s
medical status.

20.  National Guard Regulation 40-501, chapter 17 further states that if
this initial evaluation finds the soldier fit for continuation of
membership and duty in the assigned MOS, the Annual Medical Certificate
(AMC) will be annotated and submitted for return to the unit of assignment.
 If this initial evaluation indicates the soldiers is not fit to continue
membership or assignment in his/her MOS, the case records will be submitted
to the SMDRB for determination.  This initial medical evaluation will
result in one of four recommendations: (1) fully fit for continued duty in
current MOS without limitations of duty; (2) fit for retention and combat
duty but with duty limitations which may be temporary with anticipated
return to normal function requiring more than 90 days or which may be
permanent duty limitations which may or may not require reassignment or
change of MOS; (3) fit for retention but not fit for combat or field duty,
requiring
reassignment to a non-combat or nondeployable position or separation if
such a position is unavailable; and (4) not fit for retention, fails to
meet chapter 3, Army Regulation 40-501 standards of retention.

21.  National Guard Regulation 40-501, paragraph 17-4 states that the MDRB
will review all available medical documentation and may request additional
information or consultations.  Within 90 days, the MDRB will render one of
three recommendations: (1) retention in service and in MOS, with or without
duty limitations; (2) reclassification in a more suitable MOS, with or
without duty limitations and a permanent profile if appropriate which may
include reassignment to a nondeployable position if available; and (3)
separation from the ARNG as medically unfit for retention.

22.  Title 10, U. S. Code, section 12731b, (Special rule for members with
physical disabilities not incurred in line of duty) states that a member of
the Selected Reserve who no longer meets the qualifications for membership
in the Selected Reserve solely because the member is unfit because of
physical disability may, for the purposes of section 12731 (Age and Service
Requirements) of this title, be treated as having met the service
requirements and be provided with the notification required if he has
completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated for medical disability.  "Retroactive" pay,
whether disability severance pay or medical retirement pay, would not be
appropriate for the reasons listed below.

2.  The physical disability system provides for the disposition of a
soldier who may be unfit to perform his military duties because of physical
disability.  While the applicant's entire MDRB packet (to include the
commander's evaluation) is not available, the available documents indicate
the applicant was recommended for separation merely because he could not
perform the APFT and was nondeployable.

3.  Nondeployability will not serve as the sole basis for a finding of
unfitness and an inability to take the APFT does not necessarily render a
soldier unable to perform his duties.  It is noted that the applicant, for
the most part, earned qualifying years for retirement after he was
diagnosed with disc degeneration (degenerative disc disease) in 1997 and,
on his last two NCOERs, his senior rater rated his performance as
"successful."

4.  More importantly, there is no compelling evidence to show the
applicant's injury during the May 1995 APFT (diagnosed as muscle cramps)
was the proximate cause of his degenerative disc disease diagnosed in 1997.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __teo___  __ecp___  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 H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100143                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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