IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009608 


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 records to show that he was separated by reason of physical disability.  He also requests that the Department of Veterans Affairs (VA) be directed to evaluate his current rating or the amount that he is disabled in order for him to receive disability benefits, and that he be furnished copies of any advisory opinions, investigation reports and case examiner memorandums that will be used in this case prior to Board consideration, so that he may determine whether a rebuttal is warranted.

2.  The applicant states the military authorities failure to follow their own rules and regulations and denied him his rights under Army Regulation 635-200 and the United States Constitution (Amendments 5, 6 and 14); that the military physician erred by failing to order and/or conduct adequate medical measures that would have provided a proper determination of the true nature and extent of his injury(s) and by referring to his condition as preexisting; and that the military Medical Evaluation Board erred by relying on the erroneous information provided to the board by the examining/treating physician.  He states that his records do not show that the injury(s) he sustained while on active duty were service-connected, which caused him to be prematurely separated.  He states that he reported an injury that he sustained to his neck and head to his drill instructor and his drill instructor sent him to sick call, as it was obvious that he had a medical problem.  He states that he reported to the medical clinic and the physician looked at his medical history form and asked him what his complaints 



were.  He states that he told him how he was hurt by striking his head and neck on something while he was performing training.  He states that the physician looked at the injury site as he was explaining how he was suffering from a great deal of pain, numbness, and swelling.  The applicant goes on to state that the physician asked him about a small scar he had on his neck and that he told the physician about the previous biopsy he had done before he entered the Army.  He states that he called the scar a tumor because he did not have any medical training and doctors had never provided a conclusive diagnosis from the biopsy, at least not to his knowledge.  He states that when he asked the physician if there was anything he could do to treat his injury(s), he was ignored and told that he was being referred to the surgical clinic.  He states that he was dismissed and sent back to his unit without medical care.  

3.  The applicant states that he was transferred to an idle barrack to await further treatment, or that is what he was lead to believe.  He states that after being told to report to Ireland Army Hospital, he was handed a pre-filled out document to sign, which was a request for separation.  He states that he was told that he must sign the document or he would receive a dishonorable discharge.  He states that he signed the document as "ordered" and re-marked the check marks on the document per the officer's instructions.  He states that he was under a great deal of pain and duress during this time and that he is convinced that he was taken advantage of by those who were in authority over him.  The applicant states that after being told to report to the surgical clinic at Ireland Army Hospital a second time, the physician looked at his head and neck for less than 1 minute and told him that the Army was going to discharge him with an honorable/medical discharge because he had a tumor.  He states that he was told by the doctor that there was nothing that could be done to relieve the pain, numbness, and swelling from his injury and that a private/civilian physician would treat him after he was discharged.  He states that he was also told that he could re-join the Army after he was treated.  He states that neither of the physicians that examined him at Ireland Army Hospital ordered x-rays, a biopsy, test, or any medication.

4.  The applicant goes on to state that he was again told to report to Ireland Army Hospital and that after being handed a prefilled out "Medical Evaluation Board Proceedings Form" he was told that there was nothing that he could do to stop the discharge process.  He states that the officer pointed out where the appeal section on the form had been crossed out, and that he had to initial the form.  The applicant states that he was told to report for final pay and discharge documents; that he was told he was qualified to submit an Application for Compensation from the VA; that the application was presented to him for 



signature; that he was told by the officer that he would complete the form later; and that he was told to leave the base in his Class "A" uniform.  The applicant states that periodically, he would call the VA to check on the status of his claim; that he was led to believe he could receive medical treatment at the VA Medical Center until his clam was processed; that he suffered the effects of his injury(s) and could not hold a steady job because of the debilitating effects; and that in 1984, he finally was able to secure a job and afford to pay for surgery.  He states that he did not have a tumor; that it was degenerative dystrophy of the neck muscles, with massive scaring to the muscle tissue; and that over time his condition has worsened.

5.  The applicant states that he filed his claim with the VA in July 1975 and that by the year 2000, he had stopped working completely and had to rely on his wife's income.  He states that it was by accident that he discovered his claim had been denied.  He states that he was reviewing his military and VA records with a veteran's representative in early 2007, who discovered the error(s), injustices(s), and fraud that was perpetrated on him at the time of his injury.  The applicant states that he experienced a total lack of treatment after being injured while he was on active duty.  The applicant states that he joined the Army in 1974 with the hopes and desire to faithfully serve as a career Soldier; however, what he received was a damaged and devastating life, physically and financially, due to no fault of his own.

6.  The applicant provides in support of his application a 29-page Applicant's Brief in Support of Application, undated; a copy of his entrance Standard Form (SF) 88 (Report of Medical Examination), dated 23 November 1974; a copy of his entrance SF 93 (Report of Medical History), dated 23 November 1974; a copy of his DD Form 4 (Enlistment Contract) for entry into the United States Army Reserve (USAR) delayed entry, dated 17 December 1974; a copy of his DD Form 4 (Enlistment Contract) for entry into the Regular Army, dated 12 June 1975; a copy of his SF 600 (Chronological Record of Medical Care), dated
13 June 1975; a copy of his DD Form 771 (Eyewear Prescription), dated 13 June 1975; a copy of his DA Form 428 (Application for Identification Card), dated
17 June 1975; a copy of his SF 600, dated 20 June 1975; a copy of a Disposition Form, Subject: Application for Separation from Service by Reason of Erroneous Enlistment or Induction, dated 23 June 1975; a copy of his SF 88, dated 25 June 1975; a copy of his SF 93, dated 25 June 1975; a copy of his DA Form 3947 (Medical Board Proceedings), dated 30 June 1975; a copy of his DA Form 3647 (Clinical Record Cover Sheet), dated 16 July 1975; a copy of his VA Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service), dated 16 July 1975; a copy of his Elyria Memorial Hospital Operative Record, dated 10 January 1984; a copy of his Elyria Memorial Hospital Discharge Summary, dated 24 February 1984; a copy of his SF 502 (Clinical Record - Narrative Summary, undated; a copy of his DD Form 214 (Report of Separation from Active Duty, dated 17 July 1975; a notarized Declaration of (the applicant), dated 4 May 2008; a notarized Declaration of L_____ M. K____, (the applicant’s mother) dated 2 May 2008; and a Cover Letter by: (the applicant), dated 8 May 2008.

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.  On 17 December 1974, the applicant enlisted in the USAR in Cleveland, Ohio, for 6 years, in the pay grade of E-1.  

3.  Item Number 77B (Examinee) on his Report of Medical Examination, dated 
23 November 1974, shows that the applicant was found to be not qualified for enlistment in the RA.  Item number 73 on the Report of Medical Examination shows that upon inspection, no disqualifying defects or communicable diseases were noted on 17 December 1974 and on 12 June 1975.  The Report of Medical Examination shows that item number 77B was marked over at some point.  Item number 74 (Summary of Defects and Diagnosis) and Item Number 78 (If Not Qualified, List Disqualifying Defects by Item Number) shows that entries were made, but marked out at some point.

4.  The applicant's Report of Medical History dated 23 November 1974 shows that at the time of his enlistment in the USAR he acknowledged having a head injury and a "tumor, growth, cyst, cancer."  In his Report of Medical History, he indicated that when he was in Wellington, Ohio, he had a tumor removed at age 11.

5.  On 12 June 1975, the applicant enlisted in the RA for 3 years in the pay grade of E-2.

6.  On 20 June 1975, the applicant was seen by a physician for what was documented to be a tumor on his neck.  The attending physician noted that he had a large mass on the occipital portion of his head and the applicant stated that the mass was growing.  The applicant states that he was experiencing numbness in that portion of his skull with pain on movement of his head.  The physician noted that the applicant was being referred to the surgery clinic.

7.  On 20 June 1975, the applicant was seen at the surgical clinical and the attending physician noted that he had a large soft mass involving the left occipital region of his skull.  During the examination the applicant stated that the mass had been present since he was 3 years old and the physician noted that he was not sure if the mass could be removed.

8.  The applicant's Clinical Record Narrative Summary is undated.  However, it shows that 4 years prior, he had a partial examination of a large posterior left skull mass and that the work-up and pathology report shows fibroid tissue and muscle.  The narrative summary shows that the applicant was complaining that the mass was larger and that it limited his neck motion and was painful.  He was diagnosed as having a soft tissue tumor, left neck, and occipital region of the skull.

9.  On 23 June 1975, the applicant submitted an application for separation from the service by reason of erroneous enlistment or induction.  In his application, the applicant indicated that he had been advised that a medical examination conducted on 20 June 1975, revealed that he had a medical condition which would have permanently disqualified him from entry into the military service had it been detected at the time and that it did not disqualify him from retention in the military service under the provisions of Army Regulation 40-501.  In his application the applicant further indicated that he had been advised that the approved Medical Board findings confirm the findings of the examining physician and that under the provision of Army Regulation 40-3, paragraph 6-6e, he may apply for separation from the military service by reason of having been erroneously inducted or enlisted.  The applicant certified that he had been counseled as to his rights and fully understood his right to submit an application for separation by reason of erroneous enlistment or induction and that he was hereby making application for such a separation. 

10.  On 25 June 1975, the applicant underwent a medical examination for the purpose of separation.  The attending physician referred to the Medical Board Proceedings and summarized the applicant's defects and diagnosis as "soft tissue tumor-neck."  The Report of Medical Examination shows that he was found to be not qualified for induction.

11.  The applicant's Report of Medical History, dated 25 June 1975, shows that at the time of his examination, the applicant stated that he had two operations on his neck.  The question on the Report of Medical History was "Have you had, or have you been advised to have, any operations?"  The applicant condition was annotated on his Report of Medical History as a soft tissue mass of the neck that existed prior to service.

12.  The date on the applicant's Medical Board Proceedings is unclear.  However, the proceedings show that a Medical Board convened to determine whether the applicant was unfit for enlistment in the RA.  The board listed "soft tissue tumor D neck and occiptil region of skull" as his medical condition and/or physical defect and the board determined that he was medically unfit for enlistment in accordance with then current medical fitness standards.  The board further determined that his medical condition was not incurred in the line of duty and that it existed prior to service.  The board recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 5-9 and Army Regulation 40-501, chapter 2-40d.  The findings and recommendation of the Medical Board was approved on 30 June 1975 and the applicant signed the Medical Board Proceedings on 1 July 1975, indicating that he agreed with the board's action.

13.  On 16 July 1975, the applicant was seen by a physician at the United States Ireland Army Hospital, Fort Knox, Kentucky, and he was diagnosed with 
"2150-Soft tissue tumor, Dorsal neck and occipital region of skull."  It was determined again that his condition existed prior to service.

14.  On 16 July 1975, the applicant completed a VA Form 21-526e, in which tumor of the neck was listed as the nature of the sickness, disease, or injuries for which a claim was being made.  The results of the VA claim are not in the available record at this time.

15.  On 16 July 1975, the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-200, chapter 5-9, for failure to meet established physical standards (no disability).  He had 1 month and 5 days of total active service.

16.  The applicant's Operative Record from the Elyria Memorial Hospital dated 10 January 1984 shows that he underwent surgery for a recurrent mass over the suboccipital area and the left side of his back and neck.  During the operation, a bulky mass deep in the muscle behind the trapezius and posterior border of the sternocleidomastoid muscle was noted and merged with the posterior neck muscles.  On frozen section, it was noted that the scalene muscles were fatty 
tissue forming the mass.  In view of this, it was decided to biopsy the mass before doing any definitive transaction of the muscles since it was not known whether it was benign or malignant.  In the Operative Record, the attending physician noted that the dissection of the muscle mass appeared to be, at first, 
lipomatous, but as the dissection proceeded, it was actually the posterior neck muscles that were involved by the fatty-looking tissue, suggestive of some degenerative changes going on in the muscle into fatty tissue.  The lipomatous mass and fibrous adhesion, fibrolipomatous and fibrotic tissue forming the big mass were dissected from the surrounding muscle, which was further dissected to the occiput and excised.  After being sent for frozen section, it was reported as probably benign with a lot of scar tissue and fibrosis.  The Operative Record indicates that what appeared to be a big mass of lipoma, after further dissection, turned out to be the posterior neck muscle with no definite well-defined mass present, but what appeared to be like fatty degeneration of the muscle into a swollen mass in the posterior neck.  In the Operative Record, the physician noted that it was then decided to incise the mass of muscle and fatty tissue for biopsy so that a definitive diagnosis could be obtained.

17.  The applicant's Discharge Summary from Elyria Memorial Hospital dated 13 January 1984 shows dystrophy of muscle of cervical region, posterior aspect, as his final diagnosis.  The Discharge Summary also indicates that the applicant stated that at age 13, a mass was removed from the occipital area and he was told that it was a fibrous fatty tumor and that at age 16, he had another mass removed from the same area.  The applicant stated that since then, the mass had gradually increased in size and was causing pressure symptoms especially when he moved his neck.

18.  Army Regulation 635-200 (Enlisted Personnel Separations), chapter 5-9, then in effect, provided for the discharge of personnel who did not meet procurement medical fitness standards.  It states, in pertinent part, that individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within 4 months of the member's initial entrance on active duty or active duty for training under the Reserve Enlistment Program of 1963, which would have permanently disqualified him for entry into the military service had it been detected at the time; and does not disqualify him for retention in the military service under the provisions of Army Regulation 40-501, chapter 3.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that apply in determining 
whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 provided guidance on presumptions of fitness.  It stated that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

20.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  It further states that the PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

21.  Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, thus compensating the individual for loss of a career; while the VA 
may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The question in the case is whether the applicant was properly discharged from the Army for failure to meet established physical standards, due to a condition that did not amount to a disability, and whether or not his condition existed prior to service.

2.  The evidence of record shows that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The evidence of record also shows that the type of discharge directed and the reasons therefore were appropriate considering all of the fact in his case.

4.  His contentions and the evidence that he submitted in support of his application have been carefully considered.  However, there is insufficient evidence to show that he was coerced into accepting a discharge or that he was taken advantage of by individuals who had authority over him.  

5.  His records show that at the time of his enlistment in the Army, he told officials that he had two operations prior to his enlistment.  He also acknowledged having a head injury and a "tumor, growth, cyst, cancer."  He told officials that he had a tumor removed at age 11.  He was properly referred to medical physicians for an evaluation of the mass that was growing on his neck.  There is no evidence in the available record, nor has he submitted any evidence that supports his contention that he struck his head and neck on "something" while he was performing training, which resulted in him being referred to the medical clinic.  

6.  The records indicate that the mass on the applicant's neck existed prior to service and that it was not a problem until a month into his enlistment in the RA when he began to experience discomfort.  The fact that he submits documents dated almost 10 years after his discharge showing that a mass on his neck was determined to be something other then a tumor, does not mean that the physicians' diagnoses at that time of his discharge was in error or that the decision to discharge him was unjust.  



7.  The evidence of record does not show that he was forced into signing any documents.  However, the available record does show that he requested to be separated by reason of erroneous enlistment or induction.  In his request he indicated that he understood that he had a medical condition which would have permanently disqualified him from entry into the military service had it been detected at the time; and that the condition did not disqualify him from retention in the military service under the provisions of Army Regulation 40-501, chapter 3. He has provided no evidence to show that any of the documents surrounding his discharge were signed by anyone other than himself or that his request for separation and separation documents were signed under duress.

8.  By regulation, the mere presence of impairment does not, of itself, justify being furnished a discharge by reason of physical disability.  

9.  In regard to the applicant's contentions pertaining to the date of his Medical Board in relation to the date of his Application for Separation from Service by Reason of Erroneous Enlistment or Induction, as previously stated, the date reflected on the Medical Board Proceedings is unclear.  That being said, the date that the board actually convened is of no importance in determining whether he met established physical standards and whether his medical condition would have permanently disqualified him from entry into the military service had it been detected at the time.  He has provided no evidence to support his contention that he was told to sign a request for separation or he would receive a dishonorable discharge.  If the applicant believed that the information contained in his Application for Separation from Service by Reason for Erroneous Enlistment or Induction was untrue, he had the option of not signing the application; however, he opted to sign the application which is indicative that the information contained therein was correct.

10.  Competent medical authorities were within their rights to recommend his separation from the service as apposed to conducting tests for a condition that his records clearly indicate existed prior to service.  While he and his mother contends that his condition did not exist prior to service, his contentions are not supported by the evidence of record or by any documentation that he submitted in support of his application.

11.  The applicant's assertion that the military Medical Evaluation Board relied on erroneous information provided by his examining/treating physician has also been noted.  However, his records show that his physician relied on information that he obtained upon examination and on information that the applicant provided 



regarding his condition.  Additionally, as previously stated, he has provided no evidence to show that the diagnoses made by attending physicians and the determination made by the Medical Board were incorrect.

12.  Directing the VA to evaluate his current rating or the degree to which he is disabled does not fall within the purview of this Board.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  However, the Board has no authority to direct the VA to evaluate the medical conditions of service members or former service members.  

13.  There were no advisory opinions or investigation reports used during the preparation of the applicant's case.  However, a Record of Proceedings was prepared by the analyst in this case for review by the members of the Board.  The Record of Proceedings contained information submitted by the applicant and information that is contained in his official military record.  It is not the practice of this agency to refer a Record of Proceedings to the applicant for review and/or possible rebuttal until after the Board has made its decision based on all of the available documentation.  In view of the foregoing, a copy of the Record of Proceedings will not be furnished to the applicant until after a decision has been made by the Board.

14.  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.

15.  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

__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)                                         AR20080009608



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009608



12


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1