IN THE CASE OF:	  

		BOARD DATE:	  12 August 2008

		DOCKET NUMBER:  AR20080006168 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his honorable discharge be changed to a medical retirement. 

2.  The applicant states that he should be allowed the benefits of retirement since he had served 17 years, 6 months, and 3 days of military service. 

3.  The applicant provides a copy of DD Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 11 April 1989; DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 March 1986; NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service); Department of the Army, U.S. Total Army Personnel Command (USTAPC) Orders Number
D87-1, dated 5 May 1989; and a memorandum with first endorsement from USTAPC, dated 5 May 1989.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame 

provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows he enlisted in the Army National Guard on 21 December 1973.  He completed the necessary training and was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).

3.  He served continuously with the California Army National Guard (CAARNG) in various assignments leading to his separation by reason of being medically unfit for retention, characterized as honorable, on 26 May 1989.

4.  His medical record which includes DA Forms 2173, shows a history of various injuries, which include injuring his left ankle during a training exercise on  
25 August 1984; lower back strain due to a wooden pallet that struck him in the lower back on 7 June 1984; and being struck from behind by another vehicle as he waited at a red traffic light on 8 March 1986.  His record shows that between 1986 and 1989 the applicant was referred to the Long Beach Naval Hospital, California for evaluations concerning his lower back pain.

5.  On 11 February 1988, the applicant made a sworn statement that he wishes not to return to service in the Army National Guard due to his multiple health conditions, primarily because of his back and neck injuries.

6.  On 21 January 1989, a medical evaluation board (MEBD) conducted at Long Beach Naval Hospital, Long Beach, California, diagnosed the applicant with myofascial syndrome of the cervical and lumbosacral spine – 7292 "DNEPTE," and low back pain – 7242 "DNEPTE."

7.  The MEBD narrative summary states that it was the opinion of the Board that the applicant was unable to perform his full and unrestricted duties consistent with his rate and rank in the CAARNG.  The applicant has had a long history of neck and back pain, consistent with traumatic myofascial syndrome and has been extensively worked-up from an orthopedic standpoint, as well as rheumatologic standpoint, and does not demonstrate any evidence of significant underlying pathology other than that of the soft tissue injury.  The applicant is significantly limited in his ability to perform repeated squatting, bending, stooping, kneeling, climbing, running, pulling, and lifting type activities.  The MEBD referred the applicant to a PEB for adjudication.

8.  On 11 April 1989, the applicant was considered by a formal PEB.  The PEB determined that the applicant was physically unfit due to symptomatic back and neck pain and states that the applicant's functional limitations in maintaining agility, caused by the physical impairments made the applicant unfit to perform the duties required by a sergeant in MOS 76W, "Petroleum Truck Driver."  The PEB continues that it should be noted that disability ratings of less than  
30 percent for Soldiers with less than 20 years of service requires that the Soldier be separated with severance pay.  The PEB rated his condition at zero percent disabling under the Veteran's Administration Schedule for Rating Disabilities (VASRD) Code 5295, and found the applicant physically unfit and recommended a combined rating of zero percent and that the applicant be separated from the service with severance pay, if otherwise qualified. 

9.  NGB Form 22 shows that the applicant was discharged from the CAARNG by reason of being medically unfit for retention with severance pay in pay grade E-5 and with zero percent disability.  He completed 15 years, 5 months, and 6 days of Total Service for Pay.

10.  Army Regulation 40-501 (Retention Medical Fitness Standards), chapter 3 provide the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

11.  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 MEBD.  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.

12.  Title 10, United States Code, chapter 61, provides disability retirement for a member who has more than 20 years of service or a disability rated at 30 percent or greater.

13.  Title 10, United States Code, section 1203, provides for the physical disability discharge with severance pay 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 contends that his honorable discharge should be changed to a medical retirement.

2.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is reasonable to conclude that the recommendation from the formal hearing of the PEB, dated 11 April 1989, was valid at the time utilizing VASRD Code 5295 for a zero percent disability rating that found the applicant medically unfit for retention.  The applicant has not submitted any documentation which would refute this conclusion.

3.  The applicant had a less than 30 percent disability rating, with less than 20 years of service; therefore, he was properly separated from the service with severance pay.

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

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006168



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ABCMR Record of Proceedings (cont)                                         AR20080006168



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