RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070016602 


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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, reconsideration of his earlier request to void his transfer to the Retired Reserve; to reinstate him in the Army National Guard (ARNG) and on active duty; and to change his separation for disability without benefits to a medical retirement.

2.  The applicant states that he has since assembled additional medical records.
In his original application, he stated that he never requested transfer to the Retired Reserve.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim); Progress Notes dated 9 October 2007; and Progress Notes dated 24 October 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060000220 on 14 September 2006.

2.  The applicant provided new evidence which will be considered by the ABCMR.

3.  The applicant initially enlisted in the ARNG on 4 September 1981.  During his Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) proceedings he reported that he injured his back in 1984 while on active duty and was treated (provided Motrin) for this injury.  There are no service medical records to confirm this injury.

4.  After two breaks in service, the applicant last enlisted in the ARNG on 22 April 2001.  He was ordered to active duty on 30 January 2003 in military occupational specialty (MOS) 88M (Motor Transport Operator).

5.  X-rays taken on 17 March 2004 revealed the applicant had a normal lumbar spine series.  An MRI (magnetic resonance imaging) taken on 1 April 2004 revealed he had a long segment of mild congenital spinal stenosis spanning L3 to L5-S1; disk desiccation and broad-based disk bulging with a small radial tear L4-5; and broad-based disk bulging, disk desiccation, and disk osteophyte complex at L5-S-1.  No disk herniation was seen at any level or significant foraminal stenosis (was seen).

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated by the attending physician on 16 June 2004, indicates the applicant aggravated a pre-existing back injury while conducting physical training and performing heavy lifting.

7.  A Narrative Summary, dated 5 May 2004, indicated the applicant had about a 20-year history of low back pain.  There was no known mechanism of injury, simply rather insidious onset.  He was routinely being followed by a chiropractor where he had manipulation therapy.  Over the past 2 to 3 years he noted his back pain was getting increasingly worse.

8.  On 16 July 2004, an MEB referred the applicant to a PEB for a diagnosis of chronic uncomplicated low back pain (slight/constant) with intermittent right lower extremity radiculopathy; line of duty (LOD) , yes; EPTS (existed prior to service), no.  On 14 August 2004, the applicant agreed with the MEB’s findings and recommendation.

9.  On 10 August 2004, PEB proceedings were discontinued in order to obtain documentation that verified the applicant’s back pain onset “about 20 years ago” was incurred while entitled to base pay.

10.  A Narrative Summary, dated 20 January 2005, basically repeated what was stated in the 5 May 2004 Narrative Summary.

11.  On 7 February 2005, an MEB referred the applicant to a PEB for a diagnosis of chronic uncomplicated low back pain (slight/constant) with intermittent right lower extremity radiculopathy subjective complaint only; LOD, no; EPTS, yes.  On 20 February 2005, the applicant did not agree with the MEB’s findings and recommendation and appealed.  

12.  The applicant stated in his appeal that he injured his back while on active duty about 1984.  The injury resulted in intermittent pain from that point until his recent mobilization.  It was never so much as to keep him from performing his military duties.  He reinjured his back in May 2003, during physical training.  Following the injury, both the intensity of the pain and the frequency of the pain were significantly different than when he injured his back the first time.  The pain became constant, and even with medication the pain was substantial.  He had been waiting on the MEB for a year and a half.  Even if he did not have an LOD finding from his first injury, he was currently before the MEB for the reinjury.  The reinjury was an aggravation directly resulting from active service and was significantly different in the quality, texture, intensity, and frequency of pain than his initial injury.  

13.  On 4 March 2005, an informal PEB found the applicant to be unfit due to chronic subjective low back pain, without neurologic or electrodiagnostic abnormality, thoracolumbar range of motion limited by pain.  The PEB noted that there was compelling evidence to support a finding that the applicant’s current condition was EPTS and was not permanently aggravated beyond natural progression by such service.  It noted that his back pain had been present for about 20 years and there was no documentation to support any relation to military service.  On 10 March 2005, the applicant did not concur with the findings and recommendation of the informal PEB and demanded a formal hearing.

14.  On 30 March 2005, a formal PEB found the applicant to be unfit due to chronic subjective low back pain, without neurologic or electrodiagnostic abnormality, thoracolumbar range of motion limited by pain.  The formal PEB noted that there was compelling evidence to support a finding that the applicant’s current condition was EPTS and was not permanently aggravated beyond natural progression by such service.  It noted that his back pain had been present for about 20 years and there was no documentation to support any relation to military service.  On 31 March 2005, the applicant did not concur with the findings and recommendation of the formal PEB and submitted an appeal.

15.  On 4 April 2005, the U. S. Army Physical Evaluation Board, Fort Sam Houston, TX, after reviewing the applicant’s appeal, found that no change was warranted.  

16.  On 9 May 2005, the applicant was issued a notification of eligibility for retired pay at age 60 (Selected Reserve 15-year letter).  The notification noted in part that his eligibility for the 15-year letter was based on his having requested transfer to the Retired Reserve.

17.  On 24 June 2005, the applicant was released from active duty in the rank and grade of Sergeant, E-5.  Item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 June 2005 indicates he was being discharged by reason of physical disability.  Item             9 (Command to Which Transferred) indicated he was being assigned to the Retired Reserve.  His ARNG Retirement Points History Statement indicates he had completed less than 4 years of active duty.

18.  The Adjutant General, State of Georgia, Orders 101-044, dated 11 April 2006, discharged the applicant from the ARNG and assigned him to the Retired Reserve.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 25 June 2005 shows he was transferred to the Retired Reserve.  His NGB Form 22 indicates he was not available to sign this form.
19.  Effective 25 June 2005, the VA awarded the applicant a 40 percent disability rating for degenerative disc disease, lumbar spine.  

20.  VA Progress Notes dated 24 October 2007 show the applicant is rated at   60 percent for intervertebral disc syndrome.

21.  An ARNG Retirement Points History Statement shows that, between the applicant’s initial active duty for training and the date he was last ordered to active duty, the only active duty he performed was annual training.  It also indicates that he (would have) completed about 18 years and 4 months of creditable service for retired pay as of 24 June 2005.

22.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

23.  Army Regulation 635-40 states, in pertinent part, that according to accepted medical principles certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

24.  Army Regulation 635-40, appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.  This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time.  Hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented.

25.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

26.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

27.  Title 10, U. S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

28.  Title 38, U. S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, regular, or reserve retirement pay shall be made concurrently to any person based on such person's own service.

29.  Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a VA disability pension.  Under the law prior to 2004, as noted in paragraph 28 above, a veteran could only be compensated once for a disability.  If a veteran was receiving a VA disability pension and the Board corrected the records to show the veteran was retired for physical unfitness, the veteran would have had to have chosen between the VA pension and military retirement.  The new law does not apply to disability retirees with less than 20 years of service and retirees who have combined their military time and civil service time to qualify for a civil service retirement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he injured his back about 1984 while he was on active duty, although there is no medical evidence of record to confirm this injury. He contended that the injury resulted in intermittent pain from that point until his recent mobilization, but it was never so much as to keep him from performing his military duties.  

2.  The applicant was then ordered to active duty on 30 January 2003.  He contended that he reinjured his back in May 2003.  However, he also acknowledged that, following the 2003 injury, both the intensity of the pain and the frequency of the pain were significantly different than when he injured his back the first time.  He stated it was significantly different in the quality, texture, intensity, and frequency of pain than his initial injury.  

3.  If the applicant’s 2003 injury had been an aggravation of his old injury, it is unlikely that the pain would have been “significantly different in the quality and texture” of the original injury.  In the absence of compelling evidence to the contrary, and under the accepted medical principles that certain conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service, there is insufficient evidence that would warrant granting him a medical retirement.

4.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Although the Army determined that the applicant’s condition was EPTS, the VA may interpret its policies and regulations in any manner it sees fit.  

5.  The applicant requested that his transfer to the Retired Reserve be void.  In his original application, he stated that he never requested transfer to the Retired Reserve.

6.  The applicant’s Selected Reserve 15-year letter noted, in part, that his eligibility for the 15-year letter was based on his having requested transfer to the Retired Reserve.  The statute does not require transfer to the Retired Reserve prior to issuing a 15-year letter.  However, in the absence of a statement from the applicant’s ARNG unit that he indeed did not request transfer to the Retired Reserve, his statement alone is insufficient evidence that would warrant voiding his transfer to the Retired Reserve.  

7.  Given the above discussions, voiding the applicant’s transfer to the Retired Reserve would necessitate changing his records to show he was discharged from the ARNG and as a Reserve of the Army.  At this time, the applicant has failed to show how he has been significantly harmed by his transfer to the Retired Reserve.  If he does not wish to receive Reserve retired pay (which he most likely would have to waive anyway if he desired to retain his VA disability pension), he simply need not apply for his retired pay upon reaching age 60.  By remaining in the Retired Reserve, he has an option as to what action to take upon reaching age 60.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__slp___  __pms___  __lcb___  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 to amend the decision of the ABCMR set forth in Docket Number AR20060000220 dated 14 September 2006.




__Shirley L. Powell___
          CHAIRPERSON




INDEX

CASE ID
AR20070016602
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.00
2.

3.

4.

5.

6.