RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 November 2007
	DOCKET NUMBER:  AR20070008599 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Jeanne Marie Rowan

Analyst


The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Gerald Purcell

Member

Mr. John Heck

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 the Board review her service medical records and address the issue of her back and collarbone physically limiting conditions.

2.  The applicant states, in effect, that her Physical Evaluation Board (PEB) did not address all of her medical conditions, which prevented her from attaining a higher disability percentage.

3.  The applicant provides a copy of her PEB proceedings in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the Regular Army on 30 July 1986 for a period of 3 years.  She successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 71L (Clerk Typist).  She was honorably released from active duty prior to her expiration term of service on 15 June 1987 based on voluntary request for separation due to pregnancy.  She completed 10 months and 16 days of net active service during this enlistment period.  Records show she was transferred to the U. S. Army Reserve (USAR) Control Group (Annual Training).

2.  She was mobilized and ordered to active duty in support of Operation Desert Shield/Storm and served with the 304th Civil Affairs Group as a clerk typist.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably released from active duty on 3 June 1991.  She served on active duty during this mobilization period for 5 months and 7 days.  Records show she was a specialist/pay grade E4.  

3.  On 1 April 1992, she was reassigned from her troop program unit, 304th Civil Affairs Group, to the USAR Control Group (Annual Training).

4.  She enlisted on 20 May 1992 in the U. S. Army National Guard (ARNG).  She extended her enlistment contract three times through consecutive enlistment extensions to her basic contract.  She served as a motor transport operator MOS 88M in the State of Florida ARNG.  The highest rank she attained was sergeant/
pay grade E-5.

5.  On 20 January 2007, a Medical Evaluation Board (MEBD) considered the applicant's physical fitness for duty.  The MEBD found that the applicant had chronic neck pain, right clavicle pain, and chronic lower back pain.  The MEBD recommended that she be referred to a PEB.  The MEBD proceedings are not available for the Board to review.

6.  On 12 February 2007, an informal PEB was convened and found that the applicant was physically unfit due to chronic neck pain due to degenerative disc disease without significant motor neurological deficit with her range of motion limited by pain, with positive tenderness and spasms.  Her second medical diagnosis was for chronic right clavicle pain from a post clavicle fracture.  In addition, the third medical diagnosis evaluated was for low back pain, which was found not separately medically unfitting.  

7.  Records show she injured her back while in the performance of her civilian occupation and that she mobilized with the lower back pain with no evidence that the lower back pain interfered with the performance of her military duties.  Testimony within the PEB proceedings shows she was collecting workman's compensation for an annular tear at the T11-12 and that she had a right lateral disc protrusion at the lumbar vertebrae L3-4.  The PEB recommended a combined disability percentage of 10 percent.  Further, the PEB found that the applicant's medical and physical impairments prevented her from reasonably performing the duties required by her rank and military specialty.  Therefore, the PEB recommended she be separated with severance pay.

8.  On 14 February 2007, the applicant nonconcurred with the PEB's findings and recommendation.  She demanded a formal hearing with personal appearance and she requested legal counsel at government expense. 

9.  On 7 March 2007, a formal PEB was held at Fort Sam Houston, Texas.  The formal hearing affirmed the findings of the PEB held on 12 February 2007 which were the applicant was physically unfit and recommended a 10 percent disability rating for chronic neck pain due to degenerative disc disease and directed she be separated with severance pay.  Further, the proceedings found the applicant, based on her personal testimony, continued to perform her military duties driving a 5-ton truck after the first injury in January 2003 and then further aggravated her condition in a civilian motor vehicle accident in September 2004.  The applicant's military personnel records, specifically her enlisted performance appraisals, show she performed her duties as a truck operator in a satisfactory manner. 

10.  On 15 March 2007, the applicant nonconcurred with the formal PEB's findings and recommendations and authenticated DA Form 199-1 (Election to Formal Physical Evaluation Board Proceedings) in her own hand.

11.  On 23 March 2007, the applicant submitted her rebuttal to the PEB dated 7 March 2007.  The applicant's rebuttal statement is not available to the Board for its review.

12.  On 26 March 2007, the President of the PEB wrote the applicant and concurred with her argument that she was not able to perform her duties as a motor transport operator (88M2O) since June of 2005, when she injured her neck and clavicle.  The PEB President stated, in effect, that the PEB proceedings of 7 March 2007 would be corrected and forwarded to the U. S. Army Physical Disability Agency (PDA) for final processing and disposition.

13.  On 2 April 2007, the PDA reviewed the applicant's informal and formal PEB with her rebuttal statements.  The PDA affirmed the PEB decision to separate with severance pay and concurred with the disability rating of 10 percent for neck pain.  No evidence of error or injustice was found during the PDA review.

14.  On 2 April 2007, Department of the Army Order D093-01, published by the PDA, honorably discharged the applicant as a Reserve of the Army with severance pay.  She was credited with 4 years, 4 months, and 4 days of net active service.  

15.  An advisory opinion was rendered by the U. S. Army PDA.  In their advisory opinion, the PDA stated, in pertinent part, that the applicant's neck pain was rated 10 percent due to tenderness to palpation and spasms with no neurological deficits.  A rating of higher than 10 percent would require that the cervical flexion be less than 30 degrees or that an abnormal spinal contour existed.  The PDA further stated that the PEB did address the two medical conditions the applicant contends were not addressed by the PEB.  The advisory opinion stated, in pertinent part, that her painful collarbone condition was properly evaluated and that it did not meet any criteria of the established Veterans Affairs Schedule for Rating Disabilities (VASRD).  In addition, her lower back pain was evaluated by the PEB and found to not be medically unfitting.  The back injury occurred in 2003 and she continued to perform both her civilian and military duties. 

16.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

17.  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.

18.  Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, that it provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this regulation should be referred for disability processing through their serving military medical treatment facility.  

19.  Army Regulation 40-501 at paragraph 3-3a provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness 

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

21.  Army Regulation 635-40 states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  It is necessary to compare the nature and degree of the physical disability presented with the requirements of the duties the Soldier is reasonably expected to perform because of their office, grade, rank or rating.

CONCLUSIONS:

1.  The applicant contends that the PEB did not take into consideration all her medical conditions when it made its decision.  Therefore, she states, in effect, that she was prevented from receiving a higher disability rating and asks the Board to review her PEB and correct her record to show she has a higher disability rating.

2.  The applicant's PEB proceedings, both formal and informal, addressed three medical diagnoses.  First, her chronic neck pain due to degenerative disc disease was rated 10 percent.  The second medical diagnosis was her painful collarbone condition, which was not found to be unfitting, and therefore it was not rated.  The third and final medical diagnosis evaluated was for lower back pain, which was found to not be independently unfitting allowing her to perform her civilian and military duties.  The PEB proceedings show that the applicant was 
properly rated in accordance with the VASRD and in accordance with the U. S. Army's Physical Disability Pain Memorandum, Policy #12, dated 28 February 2005.  

3.  The PEB did address both her lower back and collarbone physical limiting conditions, and found that these two conditions were not physically unfitting.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of her case by her separation from the service.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WP __  ___GP __  __JH ___  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.




_____William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20070008599
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
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.
108.0200
2.

3.

4.

5.

6.