IN THE CASE OF:	  

		BOARD DATE:	        3 January 2009

		DOCKET NUMBER:  AR20080017188 


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 the board review his records in order to receive retirement compensation.  In effect, he requests to be retired for disability.

2.  The applicant states that there is no error with his record.  He also adds that he has had two strokes in 1999 and 2004 and colon cancer in 2005;

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Permanent Orders 11-11, issued by Headquarters, Fourth U.S. Army, Fort Sheridan, Illinois, on 21 January 1991.

	b.  Unit Mobilization Order 06-053, issued by Headquarters, 70th Division (Training), Livonia, Michigan, on 21 January 1991.

	c.  USARC Form 46-2-R (Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty), dated 6 June 1994.

	d.  Various medical documents, dated on miscellaneous dates throughout his military career.

	e.  DA Form 3349 (Physical Profile), dated 1 January 1994.

	f.  DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 26 March 1991 and 9 February 1961.
	g.  DD Forms 215 (Correction to the DD Form 214), dated 22 November 1991.

	h.  DARP Form 249-2-E (Chronological Statement of Retirement Points), dated 8 April 1994.

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 records show he was inducted into the Army of the United States on 24 September 1959.  He was trained in and held military occupational specialty (MOS) 951.10 (Military Policeman) and attained the rank of private first class/E-3.  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group on 9 February 1961.  The DD Form 214 he was issued shows he completed 1 year, 4 months, and 16 days of active military service.

3.  The applicant’s records also show he enlisted in the USAR on 26 January 1979.  He held MOS 11B (Infantryman), executed a series of extensions and/or reenlistments in the USAR, and attained the rank of sergeant first class/E-7.  He also completed a period of 2 months and 5 days on active duty from 22 January 1991 to 26 March 1991.

4.  On 11 June 1992, while on active duty for training, the applicant injured his back while lifting a refrigerator at Fort Benning, Georgia.  He was treated on an outpatient basis at Winder Health Clinic on 22 June 1992 and at Ireland Army Community Hospital, Fort Knox, Kentucky, on 16 and 30 July 1992.  He was diagnosed with myofascial low back pain and was issued a physical profile indicating a physical capacity and/or geographical limitations that did not meet retentions standards.  His injury was also determined to be in “Line of Duty.”

5.  In 1992 and 1993, the applicant was referred to various clinics, including orthopedic and neurosurgery, and underwent several tests, X-rays, and medical examinations, while being treated with medications and other types of treatment at the same time.  He ultimately achieved maximal medical benefits.  His final diagnosis was that of herniated nucleus pulposus L5-S1 eccentric to right with right S1 radiculopathy, status post right L5-S1 semi-hemilaminectomy and disectomy, and failed back surgery syndrome with chronic radicular pain.   The attending physician indicated that the applicant was not worldwide qualified secondary to his pain and recommended referral to a medical evaluation board (MEB).  

6.  On 4 April 1994, an MEB convened at 645th Medical Group, Wright-Patterson Air Force Base, Ohio, to evaluate the applicant’s medical condition.  The MEB determined that the applicant was medically unfit for duty due to herniated nucleus pulposus L5-S1 eccentric to right with right S1 radiculopathy, S/P right L5-S1 semi-hemilaminectomy and disectomy, and failed back surgery syndrome with chronic radicular pain, and recommended the applicant be referred to a physical evaluation board (PEB).  The applicant was informed of the findings and recommendations of the MEB. 

7.  On 2 May 1994, a PEB convened at Fort Sam Houston, Texas, and found the applicant's condition prevented him from reasonably performing the duties required of his specialty and grade and determined that he was physically unfit due to herniated nucleus pulposus L5-S1 with right S-1 radiculopathy and status post right L5-S1 semi-hemilaminectomy and discectomy with failed back syndrome.  The applicant was rated under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 5293 disability rating and was awarded a 20 percent disability rating.  The PEB further recommended the applicant be separated from the Army with severance pay if otherwise qualified.  The applicant did not concur with the PEB’s findings and recommendations.  He further demanded a formal hearing with personal appearance and requested a regularly appointed counsel to represent him.  

8.  On 28 June 1994, a formal PEB convened at Fort Sam Houston, Texas, with the applicant and his counsel present.  The PEB reevaluated all available medical records and sworn testimony by the applicant.  Based on this reevaluation, the formal PEB again found the applicant's condition prevented him from reasonably performing the duties required of his specialty and grade and determined that he was physically unfit due to herniated nucleus pulposus L5-S1 with right S-1 radiculopathy and status post right L5-S1 semi-hemilaminectomy and discectomy with failed back syndrome.  The applicant was rated under the VASRD code 5293 disability rating and was awarded a 20 percent disability rating.  The PEB again recommended the applicant be separated from the Army with severance pay if otherwise qualified. 

9.  On 28 June 1994, by memorandum, the applicant was notified to submit a rebuttal and/or state the reasons of his disagreement with the PEB’s findings and recommendations.  

10.  On 6 July 1994, the applicant submitted a rebuttal statement indicating that the manual that the PEB used to determine his disability rating shows he should have been rated at 40 to 60 percent disability rating vice the 20 percent the PEB awarded him.  He also added that he feels his immediate commander’s negative comments affected the board’s decision.

11.  On 8 July 1994, by memorandum, the applicant was notified that the PEB reviewed his rebuttal statement to the original PEB’s findings and recommendations and indicated that after a careful review, the PEB did not find any new objective medical evidence that would warrant a change in the formal PEB findings and that no change to the original findings was warranted.  

12.  On 8 August 1994, U.S. Army Personnel Command (now known as U.S. Army Human Resources Command), Alexandria, Virginia, published Orders D151-19, ordering the applicant’s discharge from the USAR, effective 22 August 1994, with entitlement to 20 percent disability severance pay in the rank of SFC based on 2 years, 4 months, and 21 days of total active Federal service.  

13.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

14.  Paragraph 3-1 of AR 635-40 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

15.  Paragraph 4-20 of AR 635-40 states, in pertinent part that if a Soldier nonconcurs with the findings and recommendations with a statement of rebuttal and demands a formal hearing, the PEB may reconsider their findings and recommendations in the light of the Soldier’s statement of rebuttal.  Should the PEB agree with the Soldier and modify their findings and recommendations, the PEB will initiate a new DA Form 199 informing the Soldier of the results.  If the Soldier accepts them, the case will be processed.  Otherwise, the case will be scheduled for a formal hearing

16.  Paragraph 4-21 of AR 635-40 states, in pertinent part that a Soldier is entitled to a formal hearing if requested after informal consideration by a PEB. The Soldier may waive this right by concurring in the findings and recommendations of the informal board.  If the Soldier demands a formal hearing, he or she is entitled to counsel.  An Army attorney will be appointed as counsel to represent Soldiers at formal PEB hearings.  The attorney will not be a voting member of the PEB or an advisor to the PEB, but will represent the Soldier as required when the Soldier requests a formal hearing. The attorney will counsel the Soldier until formal disability proceedings are completed.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was diagnosed as having a medical condition that was incurred in Line of Duty.  Following treatment, he ultimately achieved maximal medical benefits and was referred to an MEB and a subsequent PEB.  The PEB found his condition prevented him from reasonably performing the duties required of his specialty and grade and recommended his discharge from the USAR with entitlement to a 20 percent disability severance pay.  He did not concur and demanded a formal hearing of his case.

2.  The evidence of records further shows that the applicant subsequently appeared with his appointed counsel before a formal PEB.  The formal PEB reconsidered all the medical evidence and again found him physically unfit and recommended his discharge with entitlement to a 20 percent disability severance pay.  The applicant was accordingly discharged.


3.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and that his disability was properly rated in accordance with the VASRD.  His separation for disability was in compliance with law and regulation.  The applicant is correct; there is no error in his records.

4.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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 for correction of the records of the individual concerned.


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      _______ _   _______   ___
               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)                                         AR20080017188



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ABCMR Record of Proceedings (cont)                                         AR20080017188



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