RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2007
      DOCKET NUMBER:  AR20070000241


      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. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, an increase in the physical
disability rating assigned to him by the Army.

2.  The applicant states that the medical evidence he provides supports a
much higher evaluation than the one assigned by the Physical Evaluation
Board (PEB). He states that he does not believe that he was assigned a
realistic percentage.

3.  The applicant provides in support of his application, a copy of his
Certificate of Release or Discharge from Active Duty; a printout of
hospital notes that were printed on 8 January 2004; a copy of a PEB Liaison
Office Counseling Checklist/Statement; a copy of his PEB Proceedings; a
copy of his Medical Evaluation Board (MEB) Medical Record Report; a copy of
a hospital progress note dated 10 April 2006; a copy of his Radiologic
Examination Report dated 20 April 2005; and a copy of doctor's progress
notes dated 12 April 2006.

CONSIDERATION OF EVIDENCE:

1.  After completing 4 years of net active service as a member of the
United States Marine Corps, the applicant enlisted in the Army on 25 June
2002, for 3 years, in the pay grade of E-3.  He successfully completed his
training as a combat engineer.

2.  The applicant's MEB Medical Record Report dated 2 June 2005, indicates
that he was at the National Training Center loading volcano equipment when
he noticed back pain, burning, and numbness in his left leg.  His symptoms
became progressively worse and he was evaluated.  His treatments included
physical therapy back class, non-steroidal anti-inflammatory drugs,
narcotic medication, and chiropractic care with no improvement in his
symptoms.  He ultimately underwent Magnetic Resonance Imaging (MRI) of the
L-spine, which demonstrated degenerative disc disease with a disc bulge
from L4 – S1.  He ultimately underwent a lumbar fusion at the L4 – 5 level
without complication.  His unit instructed him to return to duty after 40
days of convalescence leave and at that time, he was provided a profile
which limited him to a 4-hour workday. Shortly after returning to duty, he
again began experiencing symptoms of low back pain which radiated to the
left lower extremity, especially with standing.  His symptoms progressed in
such that his sleep was disrupted and recently he had an episode of severe
pain which caused him to slump over.  He had extreme difficulty walking and
he was evaluated again.  He was provided a cane, which

did improve his symptoms and allowed him to ambulate upright.  The
applicant believed that with the cane and the additional rest he received,
his symptoms improved somewhat.  The final diagnosis made by the MEB was
chronic low back pain with left lower extremity radicular symptoms and
status post L4 – 5 lumbar fusion.  The MEB noted that it had been 9 months
since the applicant's operation and that he continued to be limited by his
pain in such that he required a cane.  The MEB also noted that his
limitation prevented him from carrying out his military occupational
specialty duties as a combat engineer.  The MEB recommended that the
applicant be referred to a PEB in accordance with Army Regulation 40-501,
paragraph 3-39(c) and 3-41(e).

3.  A PEB convened on 18 July 2005 to determine the applicant's fitness for
retention on active duty.  The PEB diagnosed him with chronic low back pain
status post L4 – 5 Lumbar fusion without motor neurologic abnormality;
range of motion limited by pain; antalgic gait.  The PEB determined that
based on a review of the objective medical evidence of record, the
applicant's medical and physical impairment prevented reasonable
performance of his duties required by his grade and military specialty.
The PEB found the applicant to be physically unfit for continued service
and the board recommended separation from the Army with severance pay, if
otherwise qualified, with a combined physical disability rating of 20
percent.  The applicant concurred with the findings and recommendation made
by the PEB and he waived a formal hearing of his case.

4.  On 24 September 2005, the applicant was honorably discharged with
severance pay, under the provisions of Army Regulation 635-40, paragraph
4-24b(3), by reason of disability, severance pay.

5.  The hospital progress notes that the applicant submitted in behalf of
his application indicate that he currently complains of severe pain and
disability; that he is unable to get a job or to work; that he has had
problems ever since his surgery; that he has burning pain radiating down to
his left foot along with leg weakness; that with standing he gets right hip
pain; that his back pain is worse with bending, lifting and sitting; that
he cannot straighten up due to severe pain; that as a result of back and
left leg weakness he collapses and falls to the ground; and that he can no
longer walk up stairs, he must crawl up the stairs.  The hospital progress
notes describe his treatment and medications.

6.  The Radiologic Examination Report that the applicant submitted in
behalf of his application was completed on 20 April 2005 and it reflects
his conditions at the time of his evaluation by the MEB.


7.  Hospital progress notes dated 12 April 2006 show that the applicant
goes to the clinic for scheduled appointments and they describe his current
complaints.

8.  On 30 July 2007, an advisory opinion was obtained from the Deputy
Commander, United States Army Physical Disability Agency (PDA), who opined
that after returning to duty, the applicant’s symptoms of back pain began
to return and that a physical examination revealed mild discomfort and he
walked with an antalgic gait.  The PDA official opined that there was some
decrease of sensation and tingling in the applicant’s left leg, but there
was 5/5 full motor strength bilaterally; that he had forward flexion of 50
degrees; that there was no electromyography evidence submitted confirming
any unfitting radiculopathy of the left leg; and that the PEB rated the
applicant 20 percent for antalgic gait caused by severe guarding in
accordance with the Department of Veterans Affairs (VA) Schedule for Rating
Disabilities 5241, General Rating Formula for Diseases and Injuries of the
Spine.  The PDA official also opined that to be rated higher than 20
percent it would require the mechanical range of motion for flexion of the
spine to be 30 degrees or less and that the narrative summary noted
50 degrees of flexion which did not meet the criteria for the higher
rating.  Additionally, any range of motion noted to be limited by pain was
not a mechanical basis.  The PDA official further opined that there were no
other conditions noted by the MEB or the applicant at the time of his
separation and that he has provided no new evidence concerning his
condition while he was in the military.  The PDA official concluded that
the applicant has provided no new evidence of any error in the disability
rating assigned by the United States Army and he recommended that no change
be made to the applicant military records.

9.  On 31 July 2007, the applicant was furnished a copy of the advisory
opinion for his information and/or possible rebuttal.  To date, there has
been no response from the applicant regarding the advisory opinion.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's disability was properly rated in accordance with the VA
Schedule for Rating Disabilities.  His separation with severance pay was in
compliance with law and regulation.



2.  The foregoing is supported by the opinion from the Deputy Commander,
PDA.

3.  The applicant's contentions have been noted.  However, his contentions
do not demonstrate error or injustice in the disability rating assigned by
the Army.  At the time that his PEB was conducted, he was assigned a 20
percent physical disability rating and he concurred with the rating opting
to waive a formal hearing in his case.  As stated in the advisory opinion,
he has provided no evidence to show that the disability rating assigned to
him by the Army at the time of his discharge was incorrect.

4.  In order to justify correction of a military record the applicant must
show 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.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RTD___  __CAD__  __EEM__  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.




                                  ___Richard T. Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000241                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070927                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  177  |108.0000/DISABILITY SEPARATION          |
|2.  179                 |108.0100/PERCENTAGE OF DISABILITY       |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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