RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20050018288


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 separation without
disability benefits be changed to a disability retirement.  He also
requests, in effect, that his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 5 November 2004 be
amended to add his Operation Iraqi Freedom medals and his military
education (specifically, the Primary Leadership Development Course (PLDC);
the Basic Noncommissioned Officer Course (BNCOC); the Nuclear, Biological,
and Chemical (NBC) Defense Course; the Advanced Water Treatment Course; and
the Advanced Equipment Training Course).

2.  The applicant states that, although he has line of duty determinations
for a back injury while deployed, he was released without his asthma or
post-traumatic stress disorder (PTSD) being rated.  He was hurried through
the boarding process and most of the pertinent information was disregarded,
such as the fact an MRI (magnetic resonance imaging) showed he had a clean
bill of health prior to his departing for the combat theater and the fact
he was medically evacuated because there was the possibility of permanent
nerve damage.

3.  The applicant provides his DD Form 214 for the period ending 5 November
2004 with a DD Form 215 (Correction to DD Form 214) dated 8 July 2005;
results of a lumbar spine examination dated 9 February 2000; a 13 May 2005
letter from Alliance Primary Care; a Standard Form (SF) 88 (Report of
Medical Examination) dated 9 January 2000; an SF 93 (Report of Medical
History) dated 9 January 2000; dental records; 7 pages of laboratory
results dated 9 January 2000; a health risk appraisal profile; a
prescription, dated 2 September 2004, for a walking cane; a memorandum,
dated 26 October 2004, from the U. S. Army Human Resources Command
(USAHRC); and his notification of eligibility for retired pay at age 60
(his 20-year letter).

4.  The applicant also provides active duty orders dated 16 January 2003;
temporary change of station orders dated 7 February 2003; reassignment
orders dated 31 July 2003; attachment orders dated 18 September 2003;
retention on active duty orders dated 19 May 2006; release from active duty
orders dated      5 November 2004; Retired Reserve assignment orders dated
9 December 2004; a hospital radiology report dated 8 April 2003; three
radiological examination reports, one dated 25 July 2003 and two dated 13
January 2004; a line of duty packet reviewed 23 April 2004; a line of duty
packet reviewed 6 May 2004; an Optional Form 275 (Medical Record Report);
an extract from Title 10, U. S. Code, sections 1201 and 1203; and a partial
copy of Department of Defense Directive 1332.18 (Separation or Retirement
for Physical Disability).

CONSIDERATION OF EVIDENCE:

1.  The applicant served in Operation Iraqi Freedom.

2.  The applicant was born on 9 January 1963.  After having had service in
the Regular Army, he was transferred to the U. S. Army Reserve on 10 May
1986.

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he
completed PLDC in 1991, BNCOC in 1993, and the NBC Defense Course in 1989.
It does not show he completed the Advanced Water Treatment Course or the
Advanced Equipment Training Course.

4.  On 21 January 2003, the applicant was ordered to active duty with his
unit in support of Operation Enduring Freedom and was assigned to U. S.
Army Forces Central Command, Camp Doha, Kuwait.

5.  On 8 April 2003, an MRI examination of the applicant’s lumbar spine was
negative.  No lumbar disc herniations were identified and no evidence for
lumbar central canal, lateral recess, or foraminal stenosis was seen.

6.  On 17 April 2003, the applicant arrived in Iraq.  He departed on 19
July 2003.

7.  On 25 July 2003, an MRI examination of the applicant’s lumbar spine
revealed mild degenerative changes in the L5-S1 facet joint.  He was
diagnosed with left foraminal disc herniation.  Clinical correlation for a
left L5 radiculopathy was suggested.

8.  On 6 August 2003, a tent fell on the applicant while he was with a team
of Soldiers setting up the tent, injuring his back.  The injury was
determined to be in the line of duty.

9.  On 13 January 2004, an MRI examination of the applicant’s cervical
spine revealed “just very mild” posterior disc bulges present at C2-C3 and
C3-C4.  Those impinged upon the thecal sac anteiorly at both levels.  No
central spinal canal stenosis or neural foraminal stenosis was seen.

10.  Another radiologic examination report dated 13 January 2004 shows that
an MRI of the applicant’s cervical spine revealed a very minimal narrowing
of disc space at C4-C5.  No spurring was seen.  All other indications were
normal.  The opinion was he had minimal degenerative disc disease at C4-C5.

11.  An Optional Form 275 indicated the applicant was being evaluated for a
medical board, for a chief complaint of lower back pain.  A physical
examination showed he was in no acute distress but walked, sat, and stood
with a limp on the left.  There was some atrophy of the left calf and
thigh.  Ranges of motion in his hip were essentially within normal limits.
Heel and toe gait were normal with a mild limp on the left.  There was no
spasm of the cervical paravertebral muscles. The head was held normally.
Ranges of motion in his back were essentially within normal limits.  He was
diagnosed with lower back pain; left sciatica; atrophy of the left calf;
degenerative disc disease; small left L5-S1 herniated nucleus pulposus; and
occasional numbness of the left parietal area and left hand with minimal C2-
3 and C3-4 posterior disc bulges.

12.  The Optional Form 275 noted that the applicant was found to not meet
retention standards and was referred to a Physical Evaluation Board (PEB).
No other Medical Evaluation Board (MEB) paperwork is available.

13.  The applicant’s PEB paperwork is not available.  The DA Form 199
(Physical Evaluation Board (PEB) Proceedings) should have informed him in
language similar to, "It appears you may qualify for retired pay for Non-
Regular Service IAW AR 135-180, Chapter 2.  If so, you have the option of
accepting disability severance pay and forfeiting your reserve retirement
or you may be placed in an inactive reserve status and receive reserve
retired pay at the age of 60…forfeiting your disability severance pay.  If
you elect transfer to the inactive reserve status list for the purpose of
receiving reserve retired pay at age 60, no disability percentage will be
computed.  UP Chapter 61, Title 10, U.S.C., 1209, you may not receive both
disability benefits and retired pay for non-regular service…."

14.  On 8 March 2004, the applicant experienced shortness of breath.  He
was seen and treated for sports-induced exacerbation of asthma.  The
incident was determined to be in the line of duty.

15.  In May 2004, the applicant was retained on active duty to voluntarily
participate in the Reserve Component Medical Holdover Medical Retention
Processing Program for completion of medical care and treatment.

16.  On 20 October 2004, the applicant was issued his notification of
eligibility for retired pay at age 60 (his 20-year letter).

17.  By letter dated 26 October 2004, the USAHRC denied the applicant’s
request for continuation in the active Reserve.

18.  On 5 November 2004, the applicant was released from active duty upon
the completion of his required active service.  Item 18 (Remarks) of his DD
Form   214 for this period of service was later amended to show he was
released from active duty by reason of physical disability.  His DD Form
214 for the period ending 5 November 2004 shows he completed a total of 5
years, 3 months, and 11 days of creditable active service.  Effective 6
November 2004, he was assigned to the Retired Reserve.

19.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons
Awarded or Authorized) of the applicant’s DD Form 214 for the period ending
     5 November 2004 shows, among other awards, the Global War on Terrorism
Service Medal but not the Global War on Terrorism Expeditionary Medal
(GWOTEM) or the Iraq Campaign Medal.

20.  Item 14 (Military Education) of the applicant’s DD Form 214 for the
period ending 5 November 2004 contains the entry, “NONE//NOTHING FOLLOWS.”

21.  The applicant provided a letter from his physician, Doctor B___.
Doctor B___ stated the applicant presented on 1 February 2000 with what
appeared to be sciatica down his right thigh.  Currently, his pain is in
his left thigh and leg.  He had been asymptomatic until 2003, when he
presented to the Army with symptoms consistent with sciatica.  A repeat MRI
was consistent with L5 and S2 sciatica.  Doctor B___ believed that the
applicant may have had a pre-existing lumbar disc disease but it was
clearly exacerbated by his episodes in the Army beginning in 2003.

22.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 It states that there is no legal requirement in arriving at the rated
degree of incapacity to rate a physical condition which is not in itself
considered disqualifying for military service when a Soldier is found unfit
because of another condition that is disqualifying.  Only the unfitting
conditions or defects and those which contribute to unfitness will be
considered in arriving at the rated degree of incapacity warranting
retirement or separation for disability.

23.  The Department of Veterans Affairs Schedule for Rating Disabilities
(VASRD) is the standard under which percentage rating decisions are to be
made for disabled military personnel.  The VASRD is primarily used as a
guide for evaluating disabilities resulting from all types of diseases and
injuries encountered as a result of, or incident to, military service.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.
24.  Title 10, U. S. Code, section 1209 states that any member of the armed
forces who has at least 20 years of service [for a reserve retirement] and
who would be qualified for disability retirement but for the fact that his
disability is less than 30 percent may elect, instead of being separated,
to be transferred to the inactive status list under section 12735 of this
title and, if otherwise eligible, to receive [reserve] retired pay upon
becoming 60 years of age.

25.  Title 10, U. S. Code, section 1212(c) states the amount of disability
severance pay received shall be deducted from any compensation for the same
disability to which the former member becomes entitled under any law
administered by the VA.  Thus, VA compensation may be withheld as an offset
on a monthly basis until the total amount of military severance pay has
been recovered.

26.  Title 10, U. S. Code, section 1213 states that, unless a person who
has received disability severance pay again becomes a member of an armed
force…he is not entitled to any payment from the armed force from which he
was separated for, or arising out of, his service before separation, under
any law administered by one of those services or for it by another of those
services.  However, this section does not prohibit the payment of money to
a person who has received disability severance pay, if the money was due
him on the date of his separation or if a claim by him is allowed under any
law.

27.  USAHRC Message (Date Time Group 17 March 2004) disseminated
implementing instructions for award of the GWOTEM for Soldiers who deploy
abroad for service in the Global War on Terrorism Operations on or after
       11 September 2001 to a date to be determined.  To be eligible for
this award a Soldier must be mobilized with or assigned or attached to a
unit participating in designated operations for 30 consecutive days or for
60 nonconsecutive days in the areas of eligibility designated, or meet
certain other specified criteria.

28.  Award of the GWOTEM was initially limited to Soldiers who deployed
abroad in Operations Enduring Freedom and Iraqi Freedom in the following
areas of eligibility (AOE):  Afghanistan, Bahrain, Bulgaria (Bourgas),
Crete, Cyprus, Diego Garcia, Djibouti, Egypt, Eritrea, Ethiopia, Iran,
Iraq, Israel, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lebanon, Oman,
Pakistan, Philippines, Qatar, Romania (Constanta), Saudi Arabia, Somalia,
Syria, Tajikistan, Turkey (east of 35 east degrees east latitude),
Turkmenistan, United Arab Emirates, Uzbekistan, Yemen, that portion of the
Arabian Sea north of 10 degrees north latitude and west of 68 degrees
longitude, Bab El Mandeb, Gulf of Aden, Gulf of Aqaba, Gulf of Oman, Gulf
of Suez, that portion of the Mediterranean Sea east of 28 degrees east
longitude, Persian Gulf, Red Sea, Strait of Hormuz, and Suez Canal.

29.  USAHRC Message (date time group 8 April 2005) provided the following
implementing instructions for award of the Iraq Campaign Medal.  Award of
the Iraq Campaign Medal is authorized for service in direct support of
Operation Iraqi Freedom on or after 19 March 2003 to a future date to be
determined by the Secretary of Defense or the cessation of the operation.
The area of eligibility encompasses all land area of the country of Iraq
and the contiguous sea area out to 12 nautical miles and the air space
above these areas.  To qualify for award of this campaign medal, service
members must have been assigned or attached to or mobilized with units
operating in these areas of eligibility for 30 consecutive days or for 60
non-consecutive days or meet one of the following criteria:  a) be engaged
in combat during an armed engagement, regardless of the time in the area of
eligibility; b) be medically evacuated from the area of eligibility for
wounds or injuries resulting from participation in an operation or official
duties; or c)  participates as a regularly assigned air crewmember flying
sorties into, out of, within or over the area of eligibility in direct
support of the military operations [each day of operations counts as one
day of eligibility].

30.  Effective 30 April 2005, the GWOTEM is no longer authorized to be
awarded for service in Afghanistan or Iraq; however, service members who
qualified for the GWOTEM by reason of service in the geographical areas of
eligibility for Operation Iraqi Freedom between 19 March 2003 and 30 April
2005, or by reason of service in the geographical areas of eligibility for
Operation Enduring Freedom between 24 October 2001 and 30 April 2005, shall
remain qualified for the GWOTEM.

31.  Army Regulation 635-5 prescribes the separation documents prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  It establishes standardized policy for the
preparation of the DD Form 214.  In pertinent part it states that formal in-
service training courses successfully completed during the period of
service covered by the DD Form  214 will be entered in item 14.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s PEB paperwork is not available, and very little of his
MEB paperwork is available; therefore, it cannot be determined what
conditions the PEB considered or if the MEB referred him to a PEB for
diagnoses of asthma and PTSD.  However, neither does the applicant provide
any evidence to show that asthma or PTSD rendered him unfit for duty.  Only
the unfitting conditions and those which contribute to unfitness will be
considered in arriving at the rated degree of incapacity warranting
retirement or separation for disability.  There is insufficient evidence to
show the applicant’s medical condition(s) warranted a disability
retirement.
2.  Although the applicant’s PEB paperwork is not available, it appears he
was offered the choice of accepting disability severance pay or retired pay
at age 60.  It appears he accepted retired pay at age 60 in lieu of
severance pay.

3.  The applicant was ordered to active duty in support of Operation
Enduring Freedom and deployed to Kuwait in support of that operation.
Because the applicant never deployed to Afghanistan but instead was
diverted to Iraq, he met the eligibility criteria for award of both the
GWOTEM and the Iraq Campaign Medal.  These two awards should be added to
his DD Form 214 for the period ending 5 November 2004.

4.  The applicant completed PLDC, BNCOC, and the NBC Defense Course prior
to the beginning period (21 January 2003) of his DD Form 214 for the period
ending 5 November 2004.  Therefore, those courses are not authorized to be
entered on this DD Form 214.  There is no evidence to show he completed the
Advanced Water Treatment and the Advanced Equipment Training Courses.
Therefore, it appears that the entry in item 14 of his DD Form 214 for the
period ending 5 November 2004 is correct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__lds___  __jtm___  __jlp___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by amending his DD Form 214 for the period ending 5
November 2004 to add the Global War on Terrorism Expeditionary Medal and
the Iraq Campaign Medal.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to:

     a.  adding the Primary Leadership Development Course; the Basic
Noncommissioned Officer Course; the Nuclear, Biological, and Chemical
Defense Course; the Advanced Water Treatment Course; or the Advanced
Equipment Training Course to his DD Form 214 for the period ending
        5 November 2004; and

     b.  changing his separation without disability benefits to a
disability retirement.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018288                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |108.00                                  |
|2.                      |100.00                                  |
|3.                      |110.04                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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