RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 November 2006
      DOCKET NUMBER:  AR20060003714


      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 that he was transferred to the temporary disability retired list
(TDRL) upon separation from the Army.

2.  The applicant states, in effect, that he underwent surgery 120 days
prior to his separation date and was issued a permanent profile.  He also
states, in effect, that his medical condition lasted over 180 days and he
should have been referred to a Medical Evaluation Board (MEB) and processed
in accordance with Army Regulation 635-40 (Physical Evaluation for
Retention, Retirement, or Separation).

3.  The applicant provides a Standard Form (SF) 600 (Chronological Record
of Medical Care), dated 21 January 2005; Optional Form (OF) 275 (Medical
Record Report), dated 24 January 2005; Record of Inpatient Treatment, dated
15 February 2005; and 2 DA Forms 3399 (Physical Profile), dated 28 December
2004 and 4 March 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 May 2005, the date of his release from active duty.
The application submitted in this case is dated 27 February 2006.

2.  The applicant enlisted in the U.S. Army Reserve on 18 April 2002 for a
period of 8 years and entered active duty in the Regular Army on 17 May
2002 for a period of 3 years.  Upon completion of basic combat training and
advanced individual training, the applicant was awarded military
occupational specialty (MOS) 14J (Early Warning System Operator).  The
applicant served in Kuwait in support of Operation Iraqi Freedom from 5
April 2003 to 31 May 2003 and was promoted to the grade of rank of
specialist/pay grade E-4 on 1 December 2003.

3.  The applicant's military service records contain a copy of
Headquarters,
U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas,
Orders 075-0269, dated 16 March 2006.  This document reassigned the
applicant to the U.S. Army transition point for transition processing and
instructs the applicant, in pertinent part, "[a]fter processing, you are
released from active duty not by reason of physical disability (emphasis
added) and assigned as indicated on the date immediately following release
from active duty."

4.  The applicant's military service records contain a DD Form 214
(Certificate of Release or Discharge from Active Duty).  This document
shows, in pertinent part, that the applicant was honorably released from
active duty on 16 May 2005 after completion of required service and having
served a total of 3 years net active service.  Item 21 (Signature of Member
Being Separated) shows that the applicant placed his signature on the
separation document.

5.  The applicant's records are absent documentation related to his
military service medical records.

6.  In support of his application, the applicant provides a SF 600, dated
21 January 2005.  This document shows that the applicant was initially
injured as a result of a heavy lifting episode in 2002 with occasional pain
afterward, which was exacerbated by a lifting incident in August 2004.  The
SF 600 also shows that the applicant was seen by medical officials at the
Orthopedic Spine Clinic, William Beaumont Army Medical Center (WBAMC), El
Paso, Texas, on
21 January 2005, during a pre-operation appointment for a herniated
intervertebral disc and intervertebral disc degeneration - lumbar.  He also
provides a copy of an OF 275 and Record of Inpatient Treatment that, in
pertinent part, show the applicant was admitted to WBAMC on 24 January
2005, provide a detailed description of the operation performed, and that
the applicant was released from WBAMC on 25 January 2005.

7.  The applicant also provides a DA Form 3399, dated 28 December 2004,
that appears to be a copy of a carbon copy of the form.  Item 3 (PULHES)
(i.e., Physical Profile Serial System) is absent any entry for either a
temporary or permanent profile.  Item 4 (Profile Type), block a (Temporary
Profile (Expiration date YYYYMMDD) (Limited to 3 months duration)) of the
document contains the entry "021505" and there does not appear to be an
entry under either the "Yes" or "No" column.  However, Item 5 (Permanent
Profile) appears to contain an "X" marked under the "Yes" column.

8.  The DA Form 3399, dated 4 March 2005, that the applicant provides also
appears to be a copy of a carbon copy of the form.  Item 3 (PULHES -
Temporary) contains the entry "113111", signifying, in pertinent part, that
the applicant's lower extremities had a temporary medical condition or
physical defect that required significant limitations.  The portion of Item
3 relating to a permanent profile is absent an entry.  Item 4 (Profile
Type), block a (Temporary Profile (Expiration date YYYYMMDD) (Limited to 3
months duration)) of the document contains the entry "2005 APR 3rd" and an
"X" is marked under the "Yes" column.  Item 5 (Permanent Profile) contains
an "X" marked under the
"No" column.
9.  Army Regulation 40-501 (Standards of Medical Fitness), Chapter 7
(Physical Profiling) prescribes a system for classifying individuals
according to functional abilities.  Paragraph 7-4 of this document provides
guidance on permanent versus temporary physical profiles and states, in
pertinent part, a profile is considered permanent unless a temporary
modifier is annotated, as described under the subparagraph for temporary
profiles.  This document also provides that a temporary profile is given if
the condition is temporary, the correction or treatment of the condition is
medically advisable, and correction usually will result in a higher
physical capacity.  This document further provides, in pertinent part, that
Soldiers on active duty with a temporary profile will be medically
evaluated at least once every 3 months, at which time the profile may be
extended by the profiling officer.  Any extension of a temporary profile
must be recorded on a
DA Form 3349.

10.  Army Regulation 635-40, paragraph 3-1 (Standards of unfitness because
of physical disability) 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.

11.  The National Archives and Records Administration website provides
information regarding veterans' health records, which shows that the health
records were formerly retired to the National Personnel Records Center -
Military Personnel Records, with the personnel portion when a member was
released, discharged, or retired from active duty; however, that practice
has been discontinued.  Starting on 16 October 1992, the U.S. Army began to
retire health records to the Department of Veterans Affairs (VA).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that based on being issued a
permanent profile he should have been referred to a MEB, processed in
accordance with Army Regulation 635-40, and transferred to the TDRL.

2.  The evidence of record shows that the applicant was issued a physical
profile on 28 December 2004; however, there is no physical profile (i.e.,
PULHES), either temporary or permanent, annotated to the document
classifying the applicant according to his functional abilities.  While the
evidence of record appears to show an "X" mark under the "Yes" column for
the permanent profile line item, this would seem to be a result of the
carbon copy of the form not being properly aligned under the original of
the form.  Consequently, this could have caused the "X" to be marked
slightly lower on the carbon copy of the form and appear to have been
entered on the permanent profile (i.e., Item 4b) line entry.
Notwithstanding the foregoing, the evidence of record clearly shows that
the profile expired on "021505", which would indicate it expired on 15
February 2005, since temporary profiles are limited to 3 months from the
date of issue. Moreover, the entry of an expiration date for the profile in
Item 4a (Temporary Profile) undermines the applicant's argument that the
document was issued as a permanent (emphasis added) profile.

3.  The evidence of record shows that the applicant underwent an operation
for his medical condition on 24 January 2005.  The evidence of record also
shows that on 4 March 2005, based upon the spine surgery for a herniated
disc, the applicant was issued another DA Form 3349.  The evidence of
record further shows that this temporary profile expired on 3 April 2005.

4.  The evidence of record shows that the standards of unfitness because of
physical disability provide that the mere presence of an impairment does
not, of itself, justify a finding of unfitness because of physical
disability.  In addition, there is no evidence of record, and the applicant
provides no documentary evidence, that shows the applicant's temporary
profile was extended beyond
3 April 2005 or that he was issued a permanent profile subsequent to 3
April 2005.  Therefore, in the absence of evidence to the contrary, the
applicant is not entitled to correction of his records to show that he was
discharged under the provisions of Army Regulation 635-40.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__PHM__  __RGS __  __DKH__  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.




                                  ____Patrick H. McGann_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003714                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20050516                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 4                   |
|DISCHARGE REASON        |Completion of Required Active Service   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.0500.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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