RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050003063


      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. Nancy L. Amos                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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, in effect, that he be paid the $63,264.00 in
disability severance pay he was promised.

2.  The applicant states he was told in writing that he would receive
$63,264.00 in severance pay based on a maximum of 12 years of service.  He
believed that to be true.

3.  The applicant provides a PEBLO Estimated Disability Compensation
Worksheet, his DD Form 214 (Certificate of Release or Discharge from Active
Duty), and his leave and earnings statement (LES) for the month of October
2004.  He stated "his orders" and a letter to his Senator were provided;
however, they were not attached to his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records from his last period of service are
not available to the Board (only his records from his U. S. Army Reserve
(USAR) service ending 24 May 1984 were available).  This case is being
considered using reconstructed records which primarily consist of the
documents provided by the applicant and his Physical Evaluation Board (PEB)
packet.

2.  The applicant reenlisted in the USAR on an unknown date.  He entered
active duty on 5 January 2000, apparently in an Active Guard Reserve
status, as a recruiter in the rank of Staff Sergeant, E-6.

3.  The Medical Evaluation Board (MEB) Narrative Summary noted the
applicant's chief complaint was chronic disabling back pain, status post
lumbar discectomy at the L5/S1 level in July 2001.  He was on Oxycodone and
Neurontin for pain.  He was enrolled in a Botox study protocol for his low
back pain.  He had seen a pain management psychologist and was recently
referred to a psychiatrist for possible further medical intervention for
his pain.  He was mildly tender to palpation along paraspinous muscles in
his lower back and the lower lumbar area and up to his lower thoracic area.
 He had limited range of motion due to pain.  He had normal sensation to
light touch in his lower extremities.  Radiographs were found to be
consistent with post discectomy changes and revealed residual early
arthritic changes.

4.  On 15 January 2004, a MEB referred the applicant to a PEB for diagnoses
of (1) chronic residual low back pain; (2) limited range of motion; and (3)
status post discectomy at L5-S1 level.  On 19 March 2004, the applicant
agreed with the MEB's findings and recommendation.
5.  On 31 March 2004, an informal PEB found the applicant unfit for duty
under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code
5243 (Intevertebral Disc Syndrome based on incapacitating episodes) as a
result of chronic low back pain post L5/S1 laminectomy and discectomy with
decreased range of motion due to pain.  There were 2/5 Waddell signs.
There were no focal neurological deficits.  There was tenderness on
palpation of the paraspinal area and back.  Motor strength was 5/5.  The
PEB recommended the applicant be separated with severance pay with a 10
percent disability rating.

6.  On 15 April 2004, the applicant did not concur with the findings of the
informal PEB and demanded a formal hearing.

7.  In a memorandum for record dated 23 April 2004, the applicant's
recruiting station commander stated the applicant was no longer able to
perform his recruiting duties due to his many disabilities.  He could sit
for only 15 minutes at a time and stand for only 15 minutes at a time.  He
was not allowed to operate a Government vehicle due to the type of
medication he was on.  He was in the office for approximately 4 hours a day
because that was as long as he could tolerate the pain.  His station
commander stated the applicant's episodes of incapacitation had clearly
exceeded 6 weeks during the past 12 months.

8.  A 3 May 2004 initial consultation from Doctor D___ at Neurology
Associates, LLC, indicated the applicant had a history of pain of his back
status post surgery at the level of left L5-S1 with unchanged symptoms for
the past 3 years.  He currently described a constant deep achiness of his
back with sharp radicular symptoms into the lateral aspect of both thighs
and anterior aspect of the legs and the sole of his foot.  A January 2003
MRI (magnetic resonance imaging) showed L3-4 facet hypertrophy
(enlargement).  L4-5 showed some further hypertrophy and mild central disc
bulge with no significant spinal stenosis or neural foraminal compromise at
the level of L5-S1.  However, from the prior surgery it was noted there was
some central enhancement of both.  The area did appear to contact the left
L5 nerve root in a neural foramina region in the left L5 root centrally.

9.  Doctor D___ stated it was unclear as to the localization of the problem
and could certainly involve the nerve or even the bone innervated by the L5-
S1 root giving referred pain to the involved extremity.  The applicant was
very impaired and could only sit and stand for no more than 15 minutes.
She would agree on  4 hours a day work time since he could only tolerate
that much amount of pain.  Furthermore, she was certain that the
applicant's "ability of incapacities" have exceeded more than 6 weeks
during the past 12 months according to his history.

10.  On 28 May 2004, a formal PEB found the applicant unfit for duty as a
result of chronic low back pain post L5/S1 laminectomy and discectomy with
decreased range of motion due to pain.  There were 2/5 Waddell signs.
There were no focal neurological deficits.  There was tenderness on
palpation of the paraspinal area and back.  Motor strength was 5/5.  The
PEB recommended the applicant be separated with severance pay with a 10
percent disability rating.

11.  On 10 June 2004, the applicant did not concur with the findings of the
formal PEB.  The Disabled American Veterans (DAV) provided a rebuttal on
behalf of the applicant.

12.  The DAV agreed that the applicant's chronic low back disorder rendered
the applicant unfit for military service but disagreed with the 10 percent
rating assigned.  The DAV believed the PEB erred in assigning a 10 percent
evaluation under diagnostic code 5243.  The DAV stated a 3 May 2004 report
from Doctor D___ stated, "it is certain that his ability of incapacities
have exceeded more than 6 weeks during the past 12 months according to his
history."  In addition, Doctor D___ noted there was a band of numbness in
the L5-S1 dermatome quite consistent with irritation of the involved area.
According to the rating formula, a 60 percent rating is warranted when
there are at least 6 weeks of incapacitating episodes per a 12-month
period.

13.  On 29 July 2004, the Washington PEB reviewed the applicant's case.  It
noted he did not provide information in his rebuttal as to any new
diagnosis or changes in his currently rated disability.  Other than Doctor
D___'s statement that "it is certain that his ability of incapacities have
exceeded more than 6 weeks during the past 12 months according to his
history," he had not provided any documentary evidence of such
incapacitating episodes.  The PEB reaffirmed its previous findings and
forwarded his case file to the U. S. Army Physical Disability Agency
(USAPDA) for review.

14.  On 6 August 2004, the USAPDA noted the applicant's disagreement and
reviewed his case.  The USAPDA concluded his case was properly adjudicated
by the PEB and affirmed the findings of the PEB.

15.  The PEBLO Estimated Disability Compensation Worksheet indicated the
applicant's compensation would be computed based on 12 years of service and
estimated he would receive $63,264.00 in disability severance pay.  The "12
years of service" may have been taken from his LES for the month of July
2004, which indicated he had 15 years of service [for pay].

16.  On 1 October 2004, the applicant was discharged by reason of
disability with severance pay.  His LES for the month of October 2004 shows
he was entitled to $33,490.80 in severance pay.

17.  In the processing of this case, an advisory opinion was obtained from
the     U. S. Army Human Resources Command – St. Louis (USAHRC – STL).  The
advisory opinion noted there was a minor error in the active duty service
computation of the applicant's service at the time of his separation.  He
should have been credited with 5 years, 11 months, and 5 days of total
active federal service and his section 1405 service should have read 7
years, 9 months, and  13 days.  The advisory opinion noted, however, that
the PEBLO Estimated Disability Compensation Worksheet was clearly in error
in that the applicant's service computation was based on longevity and not
on a combination of his active Federal service and creditable inactive duty
training periods.  His severance pay should have been based on 7 years, 9
months, and 13 days of service and not on 12 years of service based on the
guidance in the Department of Defense Financial Management Regulation
(DODFMR).  The worksheet also contained a minor error in that it reflected
the applicant's base pay as $2,636.00 when it was in fact $2,685.30 at the
12-year mark (the maximum time allowed under the disability severance pay
process).  The advisory opinion noted it appeared the finance office that
completed the applicant' disability compensation [computation] used the
correct figures.

18.  The advisory opinion noted the applicant failed to understand the
worksheet was an estimate, as it clearly stated.  The advisory opinion
referred to a statement the applicant made in which he stated he used the
original severance pay figure to help him decide whether or not to fight to
stay in the Army.  The advisory opinion noted that, since the applicant was
not eligible for retired pay at age 60, his only options would have been to
accept disability severance pay or attempt to be found fit for duty and
remain on active duty.  The advisory opinion recommended disapproval of his
request but stated consideration should be given to affording him the
opportunity to reopen his disability case for the possibility of being
found fit for duty and returning to his previous active duty status.  If he
were to be found fit for duty and returned to active duty, he should be
required to refund any disability compensation already received.

19.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

20.  The DODFMR, volume 7A, paragraph 350403A states that, to compute
disability severance pay, multiply the sum of basic pay for 2 months by the
number of combined years of active service and inactive duty training (but
not over 12).
21.  The VASRD gives code 5243 a 60 percent rating with incapacitating
episodes having a total duration of at least 6 weeks during the past 12
months; a 40 percent rating with incapacitating episodes having a total
duration of at least 4 weeks during the past 12 months; a 20 percent rating
with incapacitating episodes having a total duration of at least 2 weeks
during the past 12 months; and a 10 percent rating with incapacitating
episodes having a total duration of at least 1 week during the past 12
months.

22.  For purposes of evaluations under diagnostic code 5243, an
incapacitating episode is a period of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest prescribed by a
physician and treatment by a physician.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he was told in writing he would receive
$63,264.00 in severance pay based on a maximum of 12 years of service and
he believed that to be true.  While not available to the Board, the
advisory opinion noted the applicant had made a statement that he used this
severance pay figure to help him decide whether or not to fight to stay in
the Army.

2.  As the advisory opinion noted, the PEBLO Estimated Disability
Compensation Worksheet was only an estimate.  The Army is not liable for
the erroneous actions of its officers, agents, or employees, even though
committed in the performance of their duties.  In addition, in this case,
the applicant had fair warning the worksheet computations were estimates
only.

3.  Also, it is noted the applicant originally appealed the 10 percent
disability rating, through the DAV, arguing his rating should have been
increased to         60 percent.  Now it appears the applicant is
contending he was sufficiently fit enough to fight his separation from the
Army if his severance pay was too low.  (It is also noted that, while his
station commander and Doctor D___ stated his episodes of incapacitation had
clearly exceeded 6 weeks during the past 12 months, there appeared to be no
evidence that he had been prescribed bed rest by a physician for those
episodes as required by the VASRD to justify the higher rating.)

4.  Despite the advisory opinion's suggestion that consideration be given
to affording the applicant the opportunity to reopen his disability case
for the possibility of being found fit for duty and returning to his
previous active duty status, his contradictory arguments do not make this a
reasonable option.

5.  The applicant's current argument is insufficiently meritorious to
warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __dja___  __drt___  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.




                                  __Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003063                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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