RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070008328 


	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. Gerard W. Schwartz

Acting Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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, reinstatement and Continuation on Active Reserve (COAR) to allow him to reach 20 years of service for non-regular retirement.

2.  The applicant states, in effect, that he was found unfit for duty due to his permanent physical profile and was separated for disability with severance pay.  He further adds that his physical profile was changed twice and that he met the height and weight standards and passed his second Army physical fitness test (APFT) that was conducted by an independent source. He concludes that although his profile was changed from “P3” to P2”, he was separated for disability. 

3.  The applicant provides the following documentary evidence in support of his application: 

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 April 2006.

	b.  DA Forms 3349 (Physical Profile), P3 dated 2 August 2005, P2 dated 22 November 2005, and P2 dated 12 April 2006.

	c.  DA Form 199 (Physical Evaluation Board) Proceedings, dated 4 October 2005, with applicant’s non-concurrence dated 21 October 2005..

	d.  Revised DA Form 199, dated 1 November 2005, with applicant’s concurrence dated 17 November 2005.

	e.  TRICARE Referral Number 060324-05831, dated 7 April 2006, for patient evaluation and physical performance test.

	f.  Independent “Functional Abilities Evaluation,” El Paso Physical Therapy Service East, El Paso, Texas, dated 8 April 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant was an active Reserve sergeant/pay grade E-5, with military occupational specialty (MOS) 11B (Infantryman), assigned to the 363rd Training Support Battalion, 91st Division, Los Alamitos, California.  He is a construction worker in his civilian life.  He had chronic lumbar pain after a motor vehicle accident, with a subsequent herniated disc for which he underwent a discectomy in October 2003.  At that point he claimed his pain resolved, but he had an exacerbation of his back pain after a fall on a wet floor in July 2005.  He reported chronic back pain with occasional numbness and tingling over the left posterior thigh and leg.  He declined surgical intervention and requested a Medical Evaluation Board (MEB). 

2.  The applicant's records show that he enlisted in the Regular Army on 19 February 1974.  He completed basic combat and advanced individual training and was awarded MOS 11B.  He was honorably released from active duty on 14 October 1977 for completion of required active service.  On 15 October 1977, he enlisted in the U.S. Army Reserve (USAR) and was honorably discharged on 20 January 1981.  After a break in service, he enlisted in the California Army National Guard (CAARNG) on 21 August 1989.  He remained in the CAARNG until 21 August 2000 when he reverted back to USAR.

3.  On 24 January 2003, Headquarters, 91st Division, Dublin, California, published Orders Number M-024-0066, ordering the applicant to active duty as a member of his Reserve unit, for a period of 365 days, effective 27 January 2003, in support of Operation Enduring Freedom.  He was assigned to Fort Lewis, Washington.  The period of 365 days was later amended to 730 days by Orders Number M-04-165-00596, dated 13 June 2004. 

4.  On 31 January 2003, Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington, published Orders Number 031-012, placing the applicant’s entire unit of assignment on Temporary Change of Station (TCS), effective 1 February 2003, in support of Operation Enduring Freedom-CONUS Base Support, for 364 days. 

5.  On 21 September 2004, Headquarters, 91st Division, Dublin, California, published Orders Number M-04-265-00056, ordering the applicant to deploy for a period of 92 days, effective 20 September 2004, in support of Operation Enduring Freedom.  He was assigned for duty at the U.S. Army Air Defense Artillery Center, Fort Bliss, Texas.

6.  On 26 January 2005, Army Human Resources Command, Alexandria, Virginia, published Orders Number A-01-602105, ordering the applicant to active duty for a period of 179 days, effective 26 January 2005, with an end date of 23 July 2005, in support of Operation Noble Eagle.



7.  On 15 July 2005, Army Human Resources Command, Alexandria, Virginia, published Orders Number A-07-515216, ordering the applicant to active duty for a period of 365 days, effective 24 July 2005, in support of Operation Enduring Freedom.

8.  On 2 August 2005, the applicant was issued a permanent physical profile (P3) for recurrent stenosis by the Orthopedic Clinic, William Beaumont Army Medical Center, Fort Bliss, Texas.  The attending physician placed a “3” under the “L” portion of his PULHES.  He also placed the entry “Initiate MEB” in Item 10 (Other) of the DA Form 3349.

9.  On 13 September 2005, an MEB convened at William Beaumont Army Medical Center, Fort Bliss, Texas.  After consideration of clinical records, laboratory findings, and physical examination, the MEB found that the applicant did not meet retention standards due to L1-S1 degenerative disc disease with L4 radioculopathy.  The MEB referred the applicant to a Physical Evaluation Board (PEB).  Item 15 (Continuation on Active Duty) of the DA Form 3947 (Medical Evaluation Proceedings) showed the applicant did not desire to continue on active duty.  Item 24 (Action by Patient) showed the applicant agreed with the MEB’s findings and recommendations on 16 September 2005.

10.  On 4 October 2005, a PEB convened at Fort Lewis, Washington, and found the applicant's medical condition of chronic radiating low back pain prevented him from performing his duties.  The PEB noted that the applicant’s functional limitations in maintaining the appropriate level of stamina, caused by the physical impairment of his chronic back pain, made him medically unfit to perform the duties of his rank or office.  His unfitting condition was found to be neither service-incurred nor aggravated by military service.  Because his condition was not service incurred or permanently aggravated, he was rated under the DVA Schedule for Rating Disabilities (VASRD) code 5243 with zero percent disability rating.  The PEB recommended the applicant be separated from the Army without disability benefits or compensation.

11.  On 21 October 2005, the applicant was advised of the findings and recommendations of the PEB.  He did not concur and requested a formal hearing and representation by counsel.

12.  On 1 November 2005, by memorandum addressed to the Commander, Army Human Resources Command, St. Louis, Missouri, the applicant requested Continuation on Active Reserve (COAR), stating that his medical condition did not impair or limit the performance of his duties as an Infantryman.  

13.  On 1 November 2005, a formal PEB convened at Fort Lewis, Washington, with the applicant present at the hearing and represented by counsel.  The PEB found the applicant suffered from chronic low back pain secondary to multilevel degenerative disc disease due to sustained back injury.  He was rated under the VASRD code 5243 with 10 percent disability rating.  The PEB recommended the applicant be separated from the Army with severance pay if otherwise qualified.

14.  On 17 November 2005, the applicant concurred with the findings and recommendations of the formal PEB.  

15.  On 22 November, the applicant was issued a second permanent physical profile (P2) for low back pain by the Orthopedic Clinic, William Beaumont Army Medical Hospital, Fort Bliss, Texas.  The same attending physician placed a “2” under the “L” portion of his PULHES.  He also placed the entries “Physical Training on own at the Gym; no low back exercises; no stooping, squatting, or bending.”

16.  On 15 February 2006, the Command Surgeon, U.S. Army Human Resources Command, St. Louis, Missouri, responded to the applicant by memorandum informing him that his request for COAR was disapproved.  The Command Surgeon further added that the applicant’s initial physical profile dated 5 August 2005 prevented him from performing any physical duty and that his second physical profile, dated 22 November 2005, which came about after the MEB/PEB was not accepted as valid because of its timing and contradictory nature.

17.  On 16 February 2006, the Physical Evaluation Board Liaison Officer (PEBLO), William Beaumont Army Medical Center, Fort Bliss, Texas, informed the applicant by memorandum to report to the Adjutant General Transition Point for the purpose of establishing a separation date.

18.  On 8 April 2006, the applicant underwent an independent Functional Abilities Evaluation by the El Paso Physical Therapy Service East, El Paso, Texas.  Based on the results of the testing and specifically on the results of his dynamic lifting tests using the EPIC Lift Capacity Protocol, he tested in the very heavy occasional strength physical demand category and a sedentary frequent strength demand category.  He was able to lift 115 pounds occasionally and 60 pounds frequently.  There were some indicators of varied efforts with testing, but most of his tests had a coefficient of variation of less than 15 percent which may indicate maximal effort.  Some possible explanation of varied effort included acute phase of his injury, fear of re-injury, pain focused behavior, lack of understanding of testing procedures, and psychological overlay. 
19.  On 12 April 2006, the applicant was issued a third permanent physical profile (P2) for low back pain by the Physical Medicine Clinic, William Beaumont Army Medical Center, Fort Bliss, Texas.  The attending physician placed a “2” under the “L” portion of his PULHES.  He also placed the entries “Physical Training at own pace and distance; patient underwent FCE for quantitative evaluation of his LBP condition; this profile is based on those results and supersedes all other profiles.”

20.  On 28 April 2006, the applicant was honorably discharged from the Army in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability/severance pay.  The DD Form 214 he was issued confirms his disability severance pay at $45,478.80.

21.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and 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 office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

23.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the soldier is fit. 
24.  Paragraph 8-4 of Army Regulation 635-40 requires a commander to refer a Soldier to the responsible medical treatment facility when the unit commander believes that Soldier is unable to perform the duties of his or her office, grade, rank or rating because of physical disability.  This provision of regulation requires that the request will be in writing and will state the commander’s reasons for believing that the soldier is unable to perform his or her duties.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be allowed reinstatement and continuation on active duty (COAR) to reach 20 years of service for non-regular retirement.

2.  Evidence of record shows that the applicant’s physical profile, dated 5 August 2005, reflected his inability to perform the basic physical duties required of any Soldier.  Additionally, the applicant concurred with the findings and recommendations of the PEB.  Only after the Physical Disability Agency recommended a 10 percent disability, did the applicant pursue a new and less limiting physical profile which he obtained from the same physician who issued the original Board mandating physical profile. 

3.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation for disability was in compliance with law and regulation.  He concurred with the findings and recommendations, and with the decision to separate him.  In view of the foregoing, the applicant is not entitled to a relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__klw___  __lmd___  __mjf___  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.




							Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008328
SUFFIX

RECON

DATE BOARDED
20071106
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20060428
DISCHARGE AUTHORITY
AR 635-40
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
110.0300
2.

3.

4.

5.

6.