IN THE CASE OF:	  

		BOARD DATE:	        11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080006576 


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 service medical records be corrected to show that he was hospitalized for herniated L4-5 disks at Fort Riley, Kansas in 1975.   

2.  The applicant essentially states that the aforementioned condition was omitted from his medical treatment record, and that he has been denied benefits because his true condition was omitted.  He also states, in effect, that the doctor who was seeing him at the time recommended surgery, but that he was afraid of surgery and declined the procedure.  He further states that his condition got to the point where he could manage the pain and was returned to duty without having the surgery, but that the pain never did go away.

3.  The applicant provides no additional evidence in support of this application.

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 records show that he enlisted in the Regular Army on 21 November 1974.  He completed basic and advanced individual training and was awarded military occupational specialty 95B (Military Policeman).  He was then reassigned to Fort Riley, Kansas, which was his only permanent duty station.  On 19 November 1976, he was honorably released from active duty.  

3.  The applicant requested that his service medical records be corrected to show that he was hospitalized for herniated L-4/L-5 disks at Fort Riley, Kansas in 1975. However, his service medical records essentially show that he was admitted to Irwin Army Hospital on 15 July 1975 for acute lumbar strain.  A Standard Form 502 (Clinical Record – Narrative Summary) essentially showed that at the time, the applicant was a 20 year-old male who felt a pop in his back when he was coming out of a crouch for a rebound while playing basketball on 10 July 1975.  The physician who completed this narrative summary also stated, in pertinent part, that although he initially felt that the applicant might be an early presentation of a herniated disk without any radiculitis [inflammation of a spinal nerve root], the physician essentially backed away from that tentative diagnosis, as the applicant began to be more comfortable, was started on a gradually increasing flexion exercise program, and by the day of his discharge on 4 August 1975, the applicant was able to bend with ease and no longer having pain in his back, and also had a negative neurologic examination.  The physician did confirm a diagnosis of low back strain syndrome for the applicant, but anticipated that he would be able to return to full duty.  This physician also advised the applicant that he should be able to gradually return to his active athletics.

4.  The applicant's medical examination that was conducted in conjunction with his release from active duty essentially showed that the applicant indicated that he was a patient in a hospital in 1975 for back trouble.  However, item 74 (Summary of Defects and Diagnoses) of the applicant's Standard Form 88 (Report of Medical Examination), dated 12 August 1970, does not show that he had any physical defects at that time.

5.  The applicant's military records contained a rating decision, dated 
26 September 1988, from the Veterans Administration (now named the Department of Veterans Affairs [DVA]), which essentially shows that his request for service-connected disability for his low back problem was denied.  In denying the applicant's request, the DVA indicated that although the applicant submitted medical evidence which essentially showed that he was seen by a DVA medical Center in May 1988 with complaints of low back pain, and that a computed tomography (CT) scan showed a mild bulging of his L4-5 disks, service connection for his low back problem was denied on the basis that his low back strain in the service was considered as acute and transitory, and that it had been approximately 12 years since the applicant was discharged.  Based upon those facts, the DVA rating decision essentially stated that there was a lack of continuity and/or treatment or complaint of a back condition between the time of the applicant's release from active duty and the date of his request for service connection for his low back problem.

6.  The applicant essentially stated that his herniated L4-5 disks were omitted from his medical treatment record, and that he has been denied benefits because his true condition was omitted.  He also stated, in effect, that the doctor who was seeing him at the time recommended surgery, but that he was afraid of surgery and declined the procedure.  He further stated that his condition got to the point where he could manage the pain and was returned to duty without having the surgery, but that the pain never did go away.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his service medical records should be corrected to show that he was hospitalized for herniated L-4/L-5 disks at Fort Riley, Kansas in 1975.

2.  While the applicant contends that he had herniated L4-5 disks in 1975 and that the doctor who was seeing him at the time recommended surgery was considered, but not found to have any merit.  The evidence of record clearly shows that he was formally diagnosed with low back strain syndrome after hurting his back playing basketball, and that although the possibility of him having a herniated disk was initially suspected, it was determined after a full review of the applicant's condition that he did not have herniated disks in 1975.  The fact that he provided evidence nearly 12 years after his release from active duty which showed that he had a mild bulging of his L4-5 disks in 1988, this does not begin to approach the threshold of proving, by a preponderance of the evidence, that an error or injustice occurred during his diagnosis back in 1975.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080006576



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ABCMR Record of Proceedings (cont)                                         AR20080006576



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