RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080002199 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 reconsideration of his earlier request to change his honorable discharge to a disability discharge.

2.  The applicant states that he thought the Board could look up his medical records.  He is disabled and homeless.  He was drafted with a clean bill of health. He was injured in basic training and let go by the Army doctors.

3.  The applicant provides his original request and a copy of the Board’s previous consideration of his case; a Standard Form 519A (Radiographic Report); and a DA Form 8-274 (Medical Condition – Physical Profile Record).

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 AR20070009747 on 20 December 2007.

2.  The medical documents the applicant provides are new evidence that will be considered by the Board.

3.  The applicant completed an induction physical examination on 18 June 1968. The notes section noted that orthopedics found he had a shortening (of the leg), no limp, x-rays were negative, he was employed as a pipefitter, and he was fit for duty.

4.  The applicant completed a DD Form 398 (Statement of Personal History) on 17 July 1968.  In the remarks section, he noted that he had a 1/2 inch shortening of the left lower extremity with the possibility of muscle spasm on the left side; the possibility of swelling of the soft tissue, including the synovium (the lining around a joint) around the right hip; and a need to wear his left shoe with corrections to try to compensate (for) back pain.

5.  The applicant was inducted into the Army on 24 July 1968.  

6.  A form dated 28 September 1968 noted that the applicant had been receiving orthopedic treatment and consultation during his first six weeks of basic training and that on 23 September 1968 his unit was informed he was fully fit for duty.  

7.  The applicant provided a Standard Form 519A, dated 15 October 1968, that indicated x-rays revealed some change in the angulation in the L5/S1 level with also opening and closing of the L5/S1 disc space (on) flexion and extension, (with) possible excess motion in this area.  No other abnormality was noted.

8.  The applicant provided a DA Form 8-274 that indicated he was issued a permanent L2 profile due to unstable L5-S1 vertebrae causing low back syndrome.  The form recommended his military occupational specialty be changed to non-infantry.

9.  On 30 October 1968, the applicant was issued a permanent L3 profile due to low back pain, spondylolysis, instability L5/S1.  This form recommended the applicant be suspended from training pending a medical evaluation board.

10.  On 30 October 1968, the applicant requested discharge from the military by reason of erroneous induction in that he did not meet induction medical fitness standards.  No other documents regarding his separation are available.

11.  On 19 November 1968, the applicant was honorably released from military control by reason of a void induction after completing 3 months and 26 days of active service.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-9 at the time set the policy and prescribed procedures for discharging members who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment.  Such personnel would be discharged when a medical board, regardless of the date completed, established that a medical condition was identified by appropriate military medical authority within 4 months of the member’s initial entrance on active duty which (1) would have permanently disqualified him for entry into the military service had it been detected at that time; and (2) did not disqualify him for retention in the military service under the provisions of chapter 3, Army Regulation 40-501.  As an exception, an individual who elected to complete the period of service for which inducted or enlisted would not be discharged under this paragraph.  Such member would be required to sign a statement electing to complete his period of service, notwithstanding his eligibility for discharge under this paragraph.

13.  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.  In pertinent part, it states 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.  

14.  Army Regulation 635-40 also states that under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

15.  The National Institutes of Health Internet site medlineplus.gov indicates that in about 5 percent of the adult population there is a developmental crack in one of the vertebrae, usually at the point at which the lumbar part of the spine joins the sacrum.  It may develop as a stress fracture.  This type of fracture (called a spondylolysis) is simply a crack in part of the vertebra and may cause no problem at all.  However, sometimes the cracked vertebra does slip forward over the vertebra below it.  The Internet site also states that there may be a hereditary aspect to spondylolysis.  An individual may be born with thin vertebral bone and therefore may be vulnerable to this condition.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides no evidence to show he was injured in basic training, and the evidence of record does not show that he was drafted with a completely “clean bill of health.”

2.  Although the applicant’s induction physical examination determined he was fit for duty, orthopedics also had found he had a shortening (of the leg).  That was commensurate with what he himself had noted on his DD Form 398 (a 1/2 inch shortening of the left lower extremity with the possibility of muscle spasm on the left side; the possibility of swelling of the soft tissue, including the synovium around the right hip; and a need to wear his left shoe with corrections to try to compensate (for) back pain).  

3.  On 30 October 1968, the applicant was issued a permanent L3 profile due to low back pain, spondylolysis.  There is medical evidence to indicate that spondylolysis may have a hereditary aspect.  In addition, considering that the condition was discovered so soon after he was inducted, and considering the information he noted on his DD Form 398, his condition was at least EPTS (existed prior to service).  The applicant acknowledged that the condition was not caused by the service when he requested discharge from the military by reason of erroneous induction in that he did not meet induction medical fitness standards.

4.  It is acknowledged that now, 40 years after the applicant was discharged, he may need medical treatment for the condition for which he was separated.  Regrettably, there is insufficient evidence that would indicate his condition was incurred or aggravated while he was entitled to basic pay or was the proximate cause of performing active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x___  __x___  __x___  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 AR20070009747 dated 20 December 2007.




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                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002199


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508