IN THE CASE OF:	  

		BOARD DATE:	        4 September 2008

		DOCKET NUMBER:  AR20080009385 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show, in effect, the Parachutist Badge in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) and to show paratrooper training (correctly known as airborne training) in item 14 (Military Education).  He also requests a separation medical examination; issuance of a permanent profile for lower back pain, patella femoral pain syndrome, and a shaving condition; and in effect, a medical retirement based on a 30 percent disability rating.

2.  The applicant states, in effect, that these corrections should be made to his records.

3.  The applicant provides a copy of his DD Form 214; a memorandum, Subject: Request for Jump School, dated 8 April 1988; his DD Form 1610 (Request and Authorization for TDY Travel of DOD Personnel); a DA Form 4187 (Personnel Action); Headquarters, 82nd Airborne Division Orders Number 135-4, dated 27 July 1988; a memorandum, Subject: NCO-ER for Personnel Being Separated or Reassigned, dated 5 November 1990; a memorandum, Subject: Statement of Last Jump, undated; Headquarters, U.S. Army Medical Department Activity Orders 123-02, dated 10 July 1991; his DA Form 2-1 (Personnel Qualification Record-Part II); and his DA Form 3349 (Physical Profile).


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 enlisted in the Regular Army on 2 December 1986.  He completed basic combat training at Fort Dix, New Jersey and was reassigned to Fort Eustis, Virginia for advanced individual training (AIT).  At the completion of AIT, he was awarded military occupational specialty (MOS) 67R (1H-64 Attack Helicopter Repairer).  His highest grade held was sergeant.

3.  Headquarters, United States Army Infantry Center, Fort Benning, Georgia Permanent Orders 125-24, dated 29 June 1988, awarded the applicant the Parachutist Badge for successful completion of airborne training.

4.  On 25 October 1990, the applicant was placed on a permanent physical profile for low back pain and patella femoral pain syndrome with numerical designators of 113111.

5.  The applicant underwent a physical examination on 30 January 1991 for Medical Evaluation Board (MEB) proceedings.

6.  On 5 February 1991, the applicant was evaluated by an MEB and was diagnosed as having chondromalacia patella bilaterally and mechanical low back pain.  The applicant did not agree with the findings and recommendations of the MEB.  On 22 February 1991, the appeal was considered and the original findings and recommendation were confirmed.  He was referred to a Physical Evaluation Board (PEB).

7.  On 25 April 1991, a formal PEB found the applicant was physically unfit due to low back pain marked by a slight loss of motion under Veterans Administration Schedule for Rating Disabilities (VASRD) code 5292 and recommended separation with severance pay with a combined rating of 10 percent.  The formal 

PEB hearing had determined that he was unfit to perform the duties of his military occupational specialty and grade due to a medical condition associated with his back.

8.  The applicant was honorably discharged on 31 July 1991 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3) by reason of physical disability with severance pay.  He completed 4 years, 7 months, and 29 days of active military service.

9.  Army Regulation 635-5 (Separation Documents) states, in pertinent part, that item 14 (Military Education) will list formal in-service training courses of 40 hours or more successfully completed during the period of service covered by title, length in weeks, and month and year completed.  This information is to assist the Soldier after separation in job placement and counseling; therefore, training courses for combat skills are not listed.

10.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention, and separation.  Subparagraph 8-24g states that medical examinations, annual periodic assessments, or separation health assessments are valid for a period of 12 months from the date of examination/assessment when accomplished incident to retirement, discharge, or release from active duty.

11.  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.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

12.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

13.  The VASRD gives code 5292 (limitation of motion of the lumbar spine) a 40 percent rating when it is severe, a 20 percent rating when it is moderate, and a 10 percent rating when it is slight.

DISCUSSION AND CONCLUSIONS:

1.  Permanent orders show the applicant completed basic Airborne training and was awarded the Parachutist Badge.  Therefore, the Parachutist Badge should be added to his DD Form 214.

2.  Based on Army Regulation 635-5, training courses for combat skills are not listed on the DD Form 214.  Therefore, the applicant’s airborne training course is not authorized to be added to item 14 on his DD Form 214.

3.  The evidence of record shows the applicant underwent a physical examination in January 1991 for MEB proceedings.  He was discharged on 31 July 1991 under the provisions of Army Regulation 635-40, paragraph 
4-24e(3), by reason of physical disability with severance pay.

4.  Based on Army Regulation 40-501, the applicant’s January 1991 physical examination was valid for 12 months from the date of his examination (i.e. until January 1992).  This physical examination was considered as his separation physical examination; therefore, there is no basis for granting his request for a separation medical examination.

5.  The applicant’s service records contain a DA Form 3349 which already clearly indicates he was placed on a permanent physical profile for low back pain and patella femoral pain syndrome.  Therefore, there is no need to correct the applicant’s records to show he was issued a permanent profile for these conditions.  There is no evidence of record and he provides no evidence to show he was given or needs a permanent profile for a shaving condition.

6.  A permanent profile does not automatically render a Soldier medically unfit for retention.  Medical unfitness is determined by whether a Soldier can perform the duties of his or her MOS.

7.  Only the unfitting condition and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  The formal PEB determined that the applicant could not 

perform his duties due to a medical condition associated with his back.  The formal PEB determined that he had a slight limitation of motion due to that back condition.  Under the VASRD, he was properly given a 10 percent disability rating.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___xx___  ___xx___  ____xx__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Parachutist Badge to his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing Airborne training on his DD Form 214; a separation medical examination; and permanent physical profile for lower back pain, patella femoral pain syndrome, and a shaving condition; and a medical retirement.



      _________xxxx_________
               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)                                         AR20080009385



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ABCMR Record of Proceedings (cont)                                         AR20080009385



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