RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 OCTOBER 2006
      DOCKET NUMBER:  AR20060000238


      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 Infante                  |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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’s request is not entirely clear although she implies that
she should be retired by reason of disability or permitted to retire early
under provisions which permitted the early retirement of Soldiers who were
involuntarily separated because of medical unfitness in order to receive
Reserve retired pay at age 60 based on a minimum of 15 years of qualifying
service toward Reserve component retirement.

2.  The applicant also states that seven months of her retirement points
were not credited to her account.  She does not specify where those points
were omitted and provides no documentation to support that statement.  As
such, that issue will not be further addressed by the Board.

3.  The applicant states she should have been given an early retirement
discharge with disabilities rather than be separated upon her ETS
(expiration term of service).  She states that in July 1998 a Medical Board
recommended she be given the option of early reserve retirement with
disabilities and that on
3 June 2000 she took a physical examination during which it was recommended
she be referred to a Physical Evaluation board for "early retirement
disability."

4.  She states to the best of her recollection she was never offered that
option and instead reenlisted after being placed in the United States Army
Reserve Control Group in order to accumulate sufficient points to retire.
She notes instead, that her disabilities prevented her from actively
participating with her unit and she was discharged.

5.  The applicant provides an undated letter to a Medical Evaluation Board
recommending the applicant be given the option of early reserve retirement
for disable members due to her orthopedic condition, an undated Medical
Evaluation Board summary, the back page of a Medical Evaluation Board, a 9
July 1998 memorandum requesting she sign the Medical Board proceedings, a
copy of a
3 June 2000 physical examination, copies of her discharge orders, a copy of
what she describes as her last leave and earnings statement.  She also
submits a copy of her 2005 Department of Veterans Affairs rating document.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant began her
affiliation with the United States Army in November 1976 and served on
active duty as a member of the Regular Army between April 1977 and April
1980.  She returned to service as a member of the United States Army
Reserve in December 1983.
2.  Her records contain an October 1994 reenlistment contract noting she
was reenlisting in the United States Army Reserve for a period 6 years,
thereby establishing her separation date in October 2000.

3.  There were no service medical records available to the Board or
provided by the applicant beyond those limited documents she provided which
included partial forms from her 1998 Medical Evaluation Board.

4.  An undated statement from a United States Army Reserve physician noted
the applicant had sustained a back injury while on active duty in 1993 and
subsequently sought treatment for depression in 1995.  The physician noted
it was not unusual for individuals with chronic pain issues to develop
depression.  He also noted, however, that neither her depression, nor her
anti-depressant medication treatment, in and of themselves, caused the
applicant to fail to meet medical retention standards.  He did concur with
another physician's recommendation that the applicant be given the option
of early reserve retirement for disabled members because of her orthopedic
condition.

5.  A Medical Evaluation Board (MEB) summary, provided by the applicant, is
undated, but other documents submitted by the applicant suggest that the
MEB was done in 1998.  The summary notes the applicant's chief complaint as
"chronic low back pain" and that she had completed a fitness for duty
evaluation in 1996 and was found to not meet medical retention standards.

6.  The summary indicated the applicant appeared to have injured her back
while lifting something on active duty on 16 July 1993 which required one
day of hospitalization, and that since that time, despite exhaustive
conservative orthopedic care, the applicant had been unable to fulfill her
duties.  The MEB noted the applicant did not meet the medical retention
standards and recommended she be referred to a Physical Evaluation Board
(PEB) or be given the option of early reserve retirement eligibility for
disabled members in the selected reserve.

7.  The applicant also provided a copy of the reverse side of the MEB
proceedings, but the entire proceedings were not provided, or available to
the Board.  The reverse side of the form provides an opportunity for the
patient to indicate his/her desire to continue on active duty (item 15).
The item is to be completed only when the individual is referred to a PEB.
The form also provides that item 16 (continuance on active duty under
provisions of Army Regulation 635-40 is or is not medically
contraindicated) will be completed when the answer to item 15 is in the
affirmative.  On the form provided by the applicant, item 15 is not
completed, but item 16 contains the signatures of three Army officers.
However, neither the "is" nor the "is not" block was checked.  The form
also contains a notation in item 20 that the findings and recommendation of
the board are approved.  The document was signed on 9 July 1998.

8.  A 9 July 1998 memorandum addressed to the applicant asked that she sign
item 25 indicating if she agreed or disagreed with the board and that if
she disagreed, whether or not she included an attachment to explain her
disagreement.  She was given 10 days to return the document.

9.  Performance evaluations completed in June 1997 and November 1997 for
rating periods ending in October 1996 and October 1997, respectively,
indicated the applicant was a successful Soldier.  The 1996 evaluation
report indicated that she had a physical profile, but that the profile did
not inhibit the applicant from performing her military duties.  The October
1997 report reflected no profile but did note the applicant did not take an
Army Physical Fitness Test in October 1997 because she was out of state
pending transfer to a new unit.

10.  On 21 March 2000 the applicant was voluntarily transferred from the
United States Army Reserve Control Group (Reinforcement) to a medical unit
in Jacksonville, Florida.  That order showed the applicant's separation
date as
2 October 2000.

11.  There were no documents in available files associated with a
reenlistment action in 2000.

12.  A June 2000 periodic routine physical examination, provided by the
applicant, noted the applicant was not qualified to perform her duties
because of chronic low back pain.  The examining physician noted the
applicant should be referred to a PEB for evaluation "of early
retirement/disability."

13.  Orders issued on 21 March 2002 honorably discharged the applicant from
the United States Army Reserve.

14.  The Department of Veterans Affairs rating decision, dated in 2005,
notes the applicant was granted a 70 percent disability rating from that
agency for her major depressive disorder and 40 percent for lumbar disc
disease.

15.  Army Regulation 635-40 establishes the policies and provision for the
separation of Soldiers because of disability.  It notes that the mere
presence of an impairment does not, of itself, justify a finding of
unfitness because of physical disability.  In each case, it is necessary to
compare the nature and degree of physical disability present with the
requirements of the duties the Soldier reasonably may be expected to
perform because of his or her office, grade, rank of rating.  It states
that to ensure all Soldiers are physically qualified to perform their
duties in a reasonable manner, medical retention standards have been
established in Army Regulation 40-501.

16.  Title 10, United States Code, provides for disability processing of
Reserve Component Soldiers who incur or aggravate an injury or disease in
the line of duty while performing inactive or active duty for training.

17.  Army Regulation 635-40 states that in order for Soldiers of the
Reserve Components to be compensated for disabilities incurred while
performing duty for 30 days or less, there must be a determination by a
Physical Evaluation Board that the unfitting condition was the proximate
result of performing duty.

18.  Army Regulation 635-40 states, in effect, that Reserve Component
Soldiers will be separated from the Reserve when they no longer meet
medical retention standards.  Such separation will be without benefits if
the unfitting condition was not incurred or aggravated as the proximate
result of performing annual training, active duty special work, active duty
for training, or inactive duty training.

19.  The National Defense Authorization Act for Fiscal Year 1995 (Public
Law 103-337) amended Title 10, United States Code, section 1331a (now
codified under section 12731a).  The modification allows Reserve component
Soldiers who are involuntarily separated on or after 5 October 1994 because
of medical unfitness to elect transfer to the Retired Reserve for Reserve
retirement pay at age 60 based on a minimum of 15 years of qualifying
service toward Reserve component retirement.

20.  Army Regulation 635-40 also states that a MEB is convened to document
a Soldier's medical status and duty limitations insofar as duty is affected
by the Soldier's status.  The MEB will not reflect conclusions of
unfitness.

21.  Army Regulation 635-40 also notes there are no objective medical
laboratory testing procedures used to detect the existence of or measure
the intensity of subjective complaints of pain, and as such, a disability
retirement cannot be awarded solely on the basis of pain.

22.  The Army Physical Disability Agency (USAPDA) has noted in advisory
opinions in similar cases that confusion frequently arises from the fact
that the Army and the Department of Veterans Affairs use different rating
systems.  While both use the Veterans Administration Schedule for rating
Disabilities (VASARD), not all of the general policy provisions set forth
in the VASARD apply to the Army.  The Army rates only conditions determined
to be physically unfitting, because they adversely affect the individual’s
ability to perform assigned duties, thus compensating the individual for
loss of a career.  The Department of Veterans Affairs, on the other hand,
may rate any service-connected impairment, in order to compensate the
individual for loss of civilian employability or social functioning.  The
USAPDA has also pointed out that military disability ratings are based upon
the degree to which a medical condition affects the ability to perform duty
and not upon the diagnosis or name attached to the condition.

23.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs to award compensation for disabilities which
were incurred in or aggravated by active military service.  However, an
award of a Department of Veterans Affairs rating does not establish error
or injustice in the basis for separation from the Army.  An Army disability
rating is intended to compensate an individual for interruption of a
military career after it has been determined that the individual suffers
from an impairment that disqualifies him or her from further military
service.  The Department of Veterans Affairs, which has neither the
authority, nor the responsibility for determining physical fitness for
military service, awards disability ratings to veterans for conditions that
it determines were incurred during military service and subsequently affect
the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The absence of more complete and compelling medical evidence makes it
impossible to determine exactly what happened in the applicant's case.
What is known, based on the documents she provided and which were available
in her military file, is that according to a 1998 MEB she was found to not
meet medical retention standards in 1996 and yet performance evaluation
reports in 1996 and 1997 both indicated she was fully successful.  The
October 1996 report indicated her physical profile did not preclude
performance of her duties and the October 1997 report made no mention of
any profile.

2.  The 1998 MEB was not accompanied by any PEB documents which would
confirm the applicant was found unfit for continued service, or that she
failed to meet medical retention standards at that time.  The MEB documents
suggest, in spite of the fact that none of the applicable blocks were
checked, that the applicant may have requested to remain in the United
States Army Reserve.  Her admission that she reenlisted in March 2000 when
she was transferred from the Control Group to a unit supports a conclusion
that she may have been found fit, or at the very least permitted to
continue her military service.

3.  It is noted that following her March 2000 reenlistment she was assigned
to a medical unit.  Although, she underwent a physical examination which
noted she did not meet medical retention standards there is no evidence she
was ever referred for disability processing.  The fact that she was not
discharged until her scheduled separation date again implies that she may
not ultimately have been found to not meet medical retention standards.  It
would also seem reasonable that a member assigned to a medical unit would
have information available to her, or to members of her chain of command,
in the event that separation as a result of disability was warranted.

4.  It appears that only the applicant's lower back pain contributed to the
various physicians' statements regarding her fitness for duty.  Had that
condition rendered her unfit, she would not have received a rating high
enough to warrant disability retirement with entitlement to an immediate
monetary retirement benefit.  The fact that there is no PEB concluding she
failed to meet medical retention standards and warranted involuntary
separation as a result, precludes retirement under the Title 10, USC,
section 12731b.

5.  While the applicant may be receiving disability compensation from the
Department of Veterans Affairs, their rating action does not mandate that
the Army amend its basis for separation or require that the individual
receive similar benefits from the Army.

6.  Unfortunately there is insufficient evidence to conclude any error or
injustice occurred in this case and in the absence of such evidence the
presumption of regularity applies.

7.  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

___JI ___  ___GP __  __KJ____  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 Infante_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000238                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|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.                      |                                        |


-----------------------
[pic]