IN THE CASE OF:	

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080018037 


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 her physical evaluation board (PEB) to include and address various medical conditions (infections) that occurred subsequent to the PEB's findings and recommendation, but before her discharge.

2.  The applicant states that the PEB's findings and recommendation occurred prior to her back surgery which resulted from various infections.

3.  The applicant provides various medical documents, reports, and records of medical care and treatment, dated on various dates in June and July 2008 in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army for a period of 3 years on 7 May 2003.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 68W (Health Care Specialist).  She was honorably released from active duty in the rank of specialist (SPC)/E-4 on 25 August 2005 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

2.  After a break in service, the applicant enlisted in the Regular Army in the rank of SPC for a period of 3 years on 30 November 2006.  Her records also show 
she executed a 6-year reenlistment in the Regular Army on 6 December 2007.  She was assigned to Company C, Army Medical Command, Madigan Army Medical Center, Tacoma, WA.

3.  On an unknown date in December 2007, the applicant was involved in a motor vehicle accident and suffered from low back pain.  The facts and circumstances surrounding this accident are not available for review with this case.

4.  On 5 June 2008, a medical evaluation board (MEBD) convened at Madigan Army Medical Center, Tacoma, WA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found the applicant’s medical conditions of thoracolumbar spine pain; anemia; low grade, squamous intra-epithelial lesion with human papilloma virus (HPV); right knee pain, and headaches, rendered her unable to fulfill the requirements of her grade and specialty.  The MEBD recommended that she be referred to a PEB.  The applicant concurred with the MEBD’s findings and recommendation and indicated that she did not desire to continue on active duty.  She also submitted a statement in her behalf in which she stated that she stopped taking MS Contin and Gabapentin medications and started taking Oxycodone and Amitriptyline and requested her MOS be listed as a 68W vice 91B (Medical Specialist).

5.  On 23 June 2008, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented her from performing the duties required of her specialty and grade and determined that she was physically unfit due to chronic thoracolumbar spine pain.  The PEB also considered the applicant's other medical conditions (anemia, HPV, knee pain, and headaches), but found them to be not unfitting and therefore not ratable.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10 percent disability rating for code 5237 (chronic thoracolumbar spine pain).  The PEB recommended that the applicant be separated with severance pay, if otherwise qualified, with a 10 percent combined disability rating.  

6.  On 24 June 2008, the applicant was hospitalized at Madigan Army Medical Center for worsening back pain and spasms.  Her discharge notes show that she underwent a physical examination and an MRI (magnetic resonance imaging).  The physical examination showed she was found normal except for localized tenderness and soft tissue prominence and the MRI of the T spine showed    T11-T12 osteomyelitis with discitis and left paraspinous abscess.  She also underwent a left paraspinal abscess aspiration on 26 June 2008.  She was started on medications and was released from hospitalization on 1 July 20087 and authorized convalescent leave from 1 July 2008 to 8 July 2008.
7.  On 8 July 2008, the applicant concurred with the findings and recommendation of the informal PEB and waived a formal hearing of her case.  

8.  On 17 September 2008, the Installation Management Command, Fort Lewis, published Orders 261-0039 directing the applicant's discharge effective 13 October 2008.  

9.  The applicant's records show that she was accordingly discharged on 13 October 2008 by reason of disability with entitlement to severance pay.  The DD Form 214 she was issued shows she completed a total of 4 years, 2 months, and 3 days of creditable active service.

10.  In the processing of this case an advisory opinion was obtained on
23 February 2009.  The legal advisor, U.S. Army Physical Disability Agency (USAPDA), Washington, D.C., recommended no change to the applicant's military records relating to her disability processing.  He stated that the applicant's one medical condition that did not meet medical retention standards was thoracolumbar spine pain.  An informal PEB found her unfit on 23 June 2008 and rated her at 10 percent for limitation of spinal flexion.  The PEB recommended her separation for disability with entitlement to severance pay.  She was subsequently hospitalized for an infection in her spine from 24 June 2008 through 1 July 2008.  All records indicate that the infection was cured with no residuals.  She concurred with her PEB on 8 July 2008 and was discharged on 13 October 2008.  There are no other records provided to show her infection returned during August, September, or October 2008 or that her rated back condition changed in any way.  The infection was not a separately unfitting condition that was ratable.

11.  On 24 February 2008, the applicant was provided a copy of the advisory for information and provided her the opportunity to submit any comments and/or a rebuttal; however, she did not respond.

12.  Army Regulation 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 chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction (DODI) 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Rating can range from 0 to 100 percent, rising in increments of 10 percent.  

14.  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.  Physical evaluation boards are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  

2.  The applicant was involved in a motor vehicle accident.  She subsequently underwent an MEBD which recommended she be given a PEB.  She concurred with this recommendation.  The PEB considered all her medical conditions and found her to be unfit for further military service due to thoracolumbar spine pain and recommended her separation for disability with entitlement to severance pay.

3.  She was subsequently hospitalized for an infection in her spine from 24 June 2008 through 1 July 2008.  Her medical records indicate that the infection was cured with no residuals.  She concurred with the PEB's findings and recommendation on 8 July 2008 and was discharged on 13 October 2008.  There are no other records provided to show her infection returned after her PEB and prior to her discharge or that her rated back condition changed in any way.

4.  The applicant now believes that her subsequent medical conditions (infections) should have been addressed by the PEB, but she has provided no evidence to support this belief or to refute the PEB's rating.  The governing regulation provides that the mere presence of a medical impairment does not, in and of itself, justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform because of office, grade, rank or rating.  The infection was not a separately unfitting condition that was ratable.

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be separated with severance pay.  There is no error or injustice in this case.

6.  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.  

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.



      _________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)                                         AR20080018037



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ABCMR Record of Proceedings (cont)                                         AR20080018037



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