RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 November 2006
      DOCKET NUMBER:  AR20060003016


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann             |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Mr. David K. Haasenritter         |     |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, correction of his discharge document
to show permanent disability retirement with a disability rating of 30
percent or higher and retired pay from the date of his discharge, along
with all entitlements and benefits.

2.  The applicant states, in effect, that the Physical Evaluation Board
(PEB) made an error or oversight and did not address or consider the 4
medically unacceptable diagnoses of the Medical Evaluation Board (MEB), but
only considered 2 of the 4 medically unacceptable diagnoses.  The applicant
also states, in effect, as a result of this error or oversight he was
awarded a
20 percent rating and discharged with disability severance pay rather than
being awarded a 30 percent or higher rating and permanently retired from
the Army.
He also adds, in effect, he never received a briefing concerning the
difference between a 20 percent rating with a disability discharge and a 30
percent rating or higher with a disability retirement.  The applicant
further states, in effect, that he had over 14 years of active service and
fully intended to serve 20 years or more.

3.  The applicant provides a self-authored statement, dated 23 February
2006;
a copy of a Medical Evaluation Board memorandum, dated 10 March 1995;
Optional Form (OF) 275 (Medical Record Report), Medical Evaluation Board,
dated 8 September 1995; Medical Evaluation Board Proceedings, dated
25 September 1995; and DA Form 199 (Physical Evaluation Board (PEB)
Proceedings), dated 24 October 1995.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 December 1995, the date of his disability discharge.
The application submitted in this case is dated 23 February 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant initially enlisted in the U.S. Navy on 28 December 1979,
served as a hospital corpsman, was promoted to pay grade E-4, and honorably
separated from active duty on 28 December 1983.

4.  The applicant entered active duty in the Regular Army (RA) on 2
February 1984, completed advanced individual training (AIT) in military
occupational specialty (MOS) 64C (Motor Transport Operator), progressed to
the grade of rank of specialist four/pay grade E-4, and was honorably
separated from active duty on 1 February 1987.  The applicant reentered the
RA on 17 February 1988, completed training in MOS 91D (Operating Room
Specialist) and subsequently was trained in MOS 91C (Practical Nurse).  On
1 November 1993, the applicant was promoted to the grade of rank of staff
sergeant/pay grade E-6.

5.  The applicant suffered injuries in March 1993 when he was involved in a
motor vehicle accident while the driver of a vehicle that was struck from
the rear. He sustained a whiplash type of injury to the neck.  Then, in
late 1994, the applicant injured his lower lumbar spine while attempting to
lift a 300 pound patient onto the operating room table.

6.  The applicant's military service records contain a copy of his
Transition Processing Physical Disability Information packet.  This
information packet contains a copy of the applicant's MEB memorandum, dated
10 March 1995, that shows, in pertinent part, the applicant's case was
recommended for referral to a MEB.  The MEB memorandum lists 8 diagnoses:
4 of these diagnoses
(i.e., cervical radiculopathy secondary to disc herniations at C56, C67,
severe; multifocal neuritis secondary to cervical spondylosis, severe;
myofascial low back pain, moderate; and detrusor hyperactivity) are listed
as medically unacceptable and 4 of these diagnoses (i.e., PPD conversion
January 1994, isoniazid associated hepatitis 1994, reactive airway disease,
and hypercholesterolemia) are listed as medically acceptable.

7.  The applicant's military service records contain an OF 275 (Medical
Record Report), MEB, dated 8 September 1995.  This document, in pertinent
part, lists
7 diagnoses:  2 of these diagnoses (i.e., herniated nucleus pulposus, C4-
C5, right side, C5-C6 left side, with some cord displacement without cord
compression; and herniated nucleus pulposus, L4-L5, L5-S1) are listed as
medically unacceptable; 1 diagnosis (i.e., chemical hepatitis secondary to
Isoniazid treatment for positive tuberculosis test manifested by increased
liver function tests) is listed as medically acceptable; and 4 (i.e.,
detrusor hyperactivity, manifested by frequency of urination; asthma;
chronic sinusitis, status post septorhinoplasty x4; and
hypercholesterolemia) are listed as not disqualifying.
8.  The applicant's military service records contain the MEB Proceedings,
dated 25 September 1995.  This document shows that after consultation of
clinical records, laboratory findings, and physical examination, the MEB
found that the applicant had the 7 medical conditions/defects, as listed on
the OF 275, dated
8 September 1995, and restates these 7 diagnoses in the MEB's findings.
This document also shows, in pertinent part, that the applicant did not
present views in his own behalf, the findings and recommendations of the
board were approved, the applicant agreed with the board's findings and
recommendations, and his case was referred to a PEB.

9.  The applicant's military service records contain a copy of DA Form 199
(PEB Proceedings), dated 24 October 1995.  The PEB proceedings show that
the MEB proceedings, which included a personal statement that the applicant
provided, were considered by the PEB.  This document, lists 2 disability
descriptions, each with a recommended disability rating of 10 percent.
This document contains the statement, "[t]he PEB considers the proper
disposition to be separation with severance pay.  Ratings of less than 30
percent for Soldiers with less than
20 years retirement service require separation with severance pay in lieu
of retirement."  The PEB found the applicant physically unfit, recommended
a combined rating of 20 percent, and that the applicant be separated for
physical disability with severance pay.  Item 13 (Election of Soldier) of
this document shows, in pertinent part, that on 9 November 1995, the
applicant acknowledged being advised of the findings and recommendations of
the PEB and that he received a full explanation of the results of the
findings and recommendations and his legal rights pertaining thereto.  The
applicant initialed and signed
Item 13 of the document indicating he concurred and waived a formal hearing
of his case. The PEB proceedings were approved for the Secretary of the
Army on 13 November 1995.

10.  The applicant's military service records contain a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty) that shows, in
pertinent part, that he was discharged on 15 December 1995 due to physical
disability with severance pay.

11.  The applicant provides a self-authored statement and documents from
his service medical records relating to the MEB and PEB reports.  These
documents were part of the applicant's Transition Processing Physical
Disability Information packet and, in pertinent part, provide evidence that
the applicant was found physically unfit and recommended for a combined
disability rating of 20 percent and separated for physical disability with
severance pay.

12.  In connection with the processing of this case, the Board requested
and received an advisory opinion from the Deputy Commander, U.S. Army
Physical Disability Agency (USA PDA), Washington, District of Columbia.
The advisory opinion, in pertinent part, confirms that the MEB listed only
2 conditions that did not meet medical retention standards (i.e. Herniated
Nucleus Pulposus C4-C5,
L4-L5; and L5-S1) and that all other listed diagnoses met the medical
retention standards of Army Regulation 40-501 (Standards of Medical
Fitness), Chapter 3 (Medical Fitness Standards for Retention and
Separation, Including Retirement).

13.  The USA PDA advisory official also states that an informal PEB found
the applicant unfit for his neck pain (C4-C5 and C5-C6), with some
radiculopathy that was not independently unfitting, and unfit for low back
pain.  The advisory official adds that the combined rating was 20 percent,
separate with severance pay.  On 14 November 1995, after being counseled on
his election options and rights, the applicant concurred with the PEB
findings and waived his right to a formal board.

14.  The advisory official also states that although the applicant
complained of some paresthsias and pain, the physical examination showed
full strength of all extremities, normal reflexes, no focal weakness, no
gait dysfunction, and he was not recommend for surgical intervention.  The
applicant was not eligible for any higher rating as his neurological
involvement was not significant, it was not supported by objective medical
findings, and was not independently unfitting over and above the unfitness
of back and neck pain.  The conditions that met medical retention standards
were considered by the PEB, but the mere presence of impairment does not,
of itself, justify a finding of unfitness because of physical disability.
The advisory official adds that the PEB findings were supported by a
preponderance of the evidence, were not arbitrary or capricious, and were
not in violation of any law or regulation.  The USA PDA advisory opinion
concludes by recommending that no changes be made to the applicant's
military records.

15.  On 14 September 2006, the applicant was provided a copy of the USA PDA
advisory opinion in order to have the opportunity to respond.  To date, the
applicant has failed to provide a response.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), Appendix B (Army Application of the Department of Veterans
Affairs Schedule for Rating Disabilities), Paragraph B-39 (5293 -
Intervertebral disc syndrome and 5295 - Lumbosacral strain) provides, in
pertinent part, that demonstrable pain on spinal motion or discovery of
back pain etiology will warrant a 10 percent rating unless paravertebral
muscle spasms are also present, in which case a 20 percent rating will be
awarded.
17.  Paragraph 3-1 (Standards of unfitness because of physical disability)
of Army Regulation 635-40 provides, in pertinent part, 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 their office, grade, rank, or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the PEB did not address or
consider the 4 medically unacceptable diagnoses of the MEB, but only
considered 2 of the
4 medically unacceptable diagnoses.  Consequently, he contends that his
discharge should be corrected to show permanent disability retirement with
a disability rating of 30 percent or higher, receipt of retired pay from
the date of his discharge, and all entitlements and benefits.  He also
contends, in effect, he was not briefed concerning the difference between a
20 percent disability rating with a disability discharge and a 30 percent
disability rating or higher with a disability retirement.  However, the
applicant provides insufficient documentary evidence in support of his
claims.

2.  The evidence of record shows that information in the medical
documentation provided by the applicant was reviewed by Army medical
officials and appropriately referred to the MEB and PEB.  In addition, the
evidence of record shows that the applicant agreed with both the MEB's and
PEB's findings and recommendations, and that he waived a formal hearing of
his case by the PEB.  Therefore, there is insufficient evidence to support
the applicant's claim that the PEB (or MEB) did not address or consider the
4 medically unacceptable diagnoses contained in the MEB memorandum, dated
10 March 1995.

3.  The evidence of record shows that the applicant was found unfit for his
neck pain and low back pain and that the combined rating was 20 percent.
The evidence of record also shows that, at the time, the applicant had less
than
20 years retirement service, which required his separation with severance
pay.

4.  The evidence of record also shows that the applicant was notified that
the PEB considered the proper disposition of his case to be separation with
severance pay.  The evidence of record further shows that the applicant was
advised that ratings of less than 30 percent for Soldiers with less than 20
years retirement service require separation with severance pay in lieu of
retirement.
Therefore, the applicant provides insufficient evidence to support his
claim that he was not apprised of the difference between a 20 percent
disability rating with a disability discharge and a 30 percent disability
rating or higher with a disability retirement.

5.  There is no evidence of record to show that the Army misapplied either
the medical factors involved or the governing regulatory guidance
concerning the processing of the applicant's MEB, PEB, or disability
discharge.  Therefore, the applicant is not entitled to correction of his
records to show permanent disability retirement.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 December 1998.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PHM_  __RGS___  __DKH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                      ___Patrick H. McGann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003016                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19951215                                |
|DISCHARGE AUTHORITY     |AR 635-40, Paragraph 4-24b(3)           |
|DISCHARGE REASON        |Disability, Severance Pay               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.0200.0000                           |
|2.                      |108.0400.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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