RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 JULY 2006
      DOCKET NUMBER:  AR20050014901


      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:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Edward Montgomery             |     |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 his July 2005 discharge, by
reason of disability, be rescinded and he be restored to active duty.

2.  The applicant states that he was wrongfully discharged.  He states that
he was in better shape at the time of his discharge than he was at the time
of his accident.  He notes his orthopedic surgeon concurred that his
condition was recoverable and at the time of his discharge he had made full
recovery.  He states that he was supposed to be afforded an opportunity to
submit new evidence and although he did submit his new evidence he did not
feel that it was carefully considered.

3.  The applicant notes that he was thrown from his horse at his residence
and suffered a compression fracture to the T-11 lumbar spine.  He states
that after receiving orders to attend a military training course he was
told he needed to have his medical profile changed.  In attempting to deal
with the profile he states he was referred to a Medical Evaluation Board
(MEB) and subsequently to an informal Physical Evaluation Board (PEB).

4.  The applicant states that an informal PEB found the applicant unfit for
continued service with a 10 percent disability rating.  He states he did
not concur and requested a formal hearing but attempted to delay the formal
hearing because he was scheduled for a follow-up medical appointment.
Ultimately, his request was denied.  When he was briefed concerning his
options, he elected to waive his formal hearing with the understanding that
he would be able to submit new evidence at any point up until his
discharge.

5.  The applicant states he completed a functional capacity test and
submitted those results for consideration in May 2005 and successfully
passed an Army Physical Fitness Test in June 2005 and submitted those
results as well.  He states he was told that his functional capacity test
results would not have changed the decision of the PEB.  By 18 July 2005,
after his discharge, he had an appointment for a physical examination but
was told by his examining physician that although he was healthy, a fit for
duty determination was only for someone who was on active duty.

6.  The applicant argues that his initial physical evaluation was done
almost a year prior to his PEB and was merely updated by his physician in
February 2005. He states that in reality a physical “by regulations” must
be done within 6 months to send someone to a PEB.

7.  The applicant provides a copy of his 12 July 2005 separation document,
a copy of a 17 August 2005 statement from an Army Recruiting Company which
states that if the applicant is indeed fully healed and able he should be
reevaluated to join the Army, a 2 August 2005 statement from a physician
indicating the applicant had lost weight, was having no pain or difficult
and was fully active.  The physician stated that he saw no reason the
applicant could not perform duties as a Soldier.  The applicant also
submitted a copy of a 12 May 2005 Physical Work Performance Evaluation
Summary.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant initially entered
military service in 1987 and has served in both the Regular Army and the
United States Army Reserve.  In July 2001 he entered active duty as a
member of the United States Army Reserve where he was performing duties as
a recruiter.

2.  There were no medical records available to the Board or provided by the
applicant and documents associated with his disability processing were also
not available.  However, according to the applicant he sustained a back
injury in December 2003 when he was thrown from his horse at his residence.
 He states he suffered a compression fracture to the T-11 lumbar spine.

3.  On 28 April 2005 the applicant signed a memorandum withdrawing his
demand for a formal PEB hearing, which was scheduled for 29 April 2005.  He
indicated in his memorandum that he did not contest the informal PEB rating
of 10 percent.  He also indicated that he understood that if he discovered
any new or additional evidence, he reserved the right to submit a request
for reconsideration under the provisions of Army Regulation 635-40,
paragraph
4-20f(2).

4.  Paragraph 4-20f(2) of Army Regulation 635-40 states that when
additional medical evidence or an addendum to the MEB is received after the
PEB has forwarded the case and the PEB determines that such evidence would
change any finding or recommendation, the case will be recalled by the PEB
and a new PEB form issued.

5.  According to one of the documents provided by the applicant, on 12 May
2005 the applicant underwent a Physical Work Performance Evaluation at the
Capital Region Medical Center in Jefferson City, Missouri.  The summary
document of that evaluation noted, among other things, that the applicant
was capable of sustaining the medium level of work for an 8-hour day, but
also felt pull in back when leaned back to lift a box, and stopped due to
pain squatting to lift/lower the box, and that factors underlying
functional limitations included generalized de-conditioning, pain in mid
and low back with twisting and bending, and fatigue in leg muscles.

6.  On 12 July 2005 the applicant was honorably discharged by reason of
disability and received approximately $23,000.00 in disability severance
pay.  His separation document notes he received a Reentry (RE) Code of 3.

7.  Army Regulation 601-210 establishes the policies and provision for the
enlistment of prior and non-prior service members in the Army.  It notes
that an RE-3 code is waivable and states that any applicant for enlistment,
who was last separated or discharged from any component of the Armed Forces
for medical reasons, with or without disability, will require a waiver for
enlistment into the Regular Army or Army Reserve.

8.  The applicant also included a copy of the results of an Army Physical
Fitness Test which was administered on 16 July 2005, 4 days after his
discharge which noted that he had passed the fitness test.

9.  Also included as evidence supporting his contention that his discharge
was wrong is the 2 August 2005 statement from a civilian physician noting
he could see no reason that the applicant could not perform the duties of a
Soldier.  A second document, dated 12 August 2005, from an Army recruiting
company noted that if the applicant was indeed fully healed and able, he
should be considered favorably to be reevaluated in order to rejoin the
Army.

10.  Army Regulation 635-40 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 or her office,
grade, rank, or rating.  It notes that one of the goals of the Army’s
disability system is to maintain an effective and fit military organization
with maximum use of available manpower.  It also states that the effect of
an individual’s disability or disabilities will be considered both from the
standpoint of how the disabilities affect the Soldier’s performance and the
requirements imposed on the Army to maintain and protect him or her during
future duty assignments.

11.  The regulation does not establish a time limitation for the use of
physical examination but merely notes that the commander having primary
medical care responsibility will conduct an examination of a Soldier
referred for evaluation and that the commander will then advise the
Soldier’s commanding officer of the result of the evaluation and the
proposed disposition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not shown by any definitive medical evidence that his
discharge in July 2005 was invalid, unjust, or erroneous.  The applicant
was a full participant in the disability processing and could have, at any
time, lobbied to remain in an active status.

2.  His argument that he was assured that he could submit new evidence at
any time after his informal PEB is not entirely correct.  He was permitted
to submit new medical evidence, which could then be reviewed to determine
if any change was warranted in the PEB’s original findings.  In the
applicant’s case, the Physical Work Performance Evaluation, conducted in
May 2005 does not appear to indicate the applicant should have been
considered fit for military service.  Rather, it noted the applicant
continued to experience pain and fatigue during certain activities.  It
should be noted that not only is the military’s disability system intended
to identify Soldiers who are precluded from continued military service
because of disabilities but it also serves the purpose of ensuring that
Soldiers with disabilities are not further injured by retaining them in a
military environment.

3.  The fact that the applicant and his supporters now argue that he should
be able to function in a military environment is best addressed through
recruiting channels via appropriate waiver actions.  Receipt of such a
waiver permitting the applicant to reenlist, however, is not evidence that
his discharge was erroneous nor would it serve as a basis to grant the
relief requested.

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

___JM  __  __JR ___  ___EM   _  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.





                                  ______John Meixell_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014901                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|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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