IN THE CASE OF:	

		BOARD DATE:	3 September 2009    

		DOCKET NUMBER:  AR20090006067 


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 his physical disability discharge be changed to a medical retirement.

2.  The applicant states that he believes the Army left out some of his diagnoses and failed to diagnose others.  He adds that he believes the Army should have been more thorough when going through his medical board.  He also states that he was never offered a Military Occupational Specialty Medical Retention Board (MMRB) and was rather automatically referred to a Medical Evaluation Board (MEBD) without any other option.  He further states that he would have been able to perform in another specialty than that in which he was assigned and that he raised the issue of an MMRB because he knew there were other specialties he could still perform.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 2007; a copy of his Enlisted Record Brief, dated 26 November 2007; a copy of his DA Form 199 (Physical Evaluation Board Proceedings), dated 15 November 2007; a copy of his DA Form 3947 (Medical Evaluation Board Proceedings), dated 30 October 2007; a copy of his DA Form 3349 (Physical Profile), dated 31 October 2007; and copies of various medical charts, reports, treatment records, evaluations, examinations, and other medical documents, dated on miscellaneous dates throughout his last period of enlistment in support of his request.  



CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Navy and the Army National Guard, and having held military occupational specialty (MOS) 92Y (Supply Specialist), the applicant’s records shows he enlisted in the Regular Army in the rank/grade of specialist/E-4 for a period of 3 years on 26 July 2007.  He was initially assigned to the 95th Adjutant General Reception Battalion, Fort Sill, OK, for initial processing, and was subsequently reassigned to the 1st Battalion, 515th Warrior Transition Course (WTC), White Sands Missile Range, NM. 

2.  The WTC is designed for selected Airmen, Sailors and Marines, and former Soldiers who want to join the Army.  They must first tackle the WTC, a five-week course for those military personnel who meet the requirements.  Following four days of inprocessing at Fort Sill, OK, the future Soldiers then train two weeks in Santa Fe, NM, and two weeks at the White Sands Missile Range, NM, where they graduate.

3.  On 13 September 2007, by memorandum, the applicant’s immediate commander certified that the applicant was reassigned to the Physical Training and Rehabilitation Program (PTRP) of the 3rd Battalion, 413th Regiment, 104th Division (Institutional Training), Pasadena, CA, on 6 August 2007, due to his medical condition.  The immediate commander further stated that:

	a.   the applicant was unable to engage in or complete the WTC training and that based on his inability to complete the WTC training, he was also unable to train or work in his assigned MOS.  He had been performing only administrative duties in the S-1 and not those required in his primary MOS;

	b.  his medical condition required him to go on sick call and make numerous appointments which also kept him from completing his S-1 assigned duties.  The immediate commander recommended his referral to a physical evaluation board (PEB); and

	c.  he has not been able to engage in physical training or participate in the Army Physical Fitness Test.

4.  The applicant's narrative summary (NARSUM), dated 25 October 2007, shows that subsequent to various medical examinations, the applicant was diagnosed as having low back pain with herniated intervertebral disc in the lumbar region and joint pain in the right shoulder.  The attending physical noted 

that the applicant did not meet the retention standards of Army Regulation       40-501 (Standards of Medical Fitness) and that due to his medical condition he was unable to satisfactorily perform the duties expected of a member of his rank, station, and MOS.  The attending physician recommended his referral to a PEB.

5.  On 30 October 2007, an MEBD convened at William Beaumont Army Medical Center, TX, and after consideration of the clinical records, laboratory findings, and physical examination, the MEBD found the applicant had the medical conditions of low back pain with herniated intervertebral disc in the lumbar region and joint pain right shoulder.  The MEBD recommended the applicant’s referral to a PEB.  The applicant indicated that he did not desire to continue on active duty and agreed with the MEBD’s findings and recommendations.  

6.  On 15 November 2007, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's conditions prevented him from performing his duties and determined that he was physically unfit due to chronic back pain and right shoulder pain.  The applicant was rated under the Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5299 and 5237 (chronic back pain) and granted a 10-percent disability rating and codes 5099 and 5003 (right shoulder pain) and granted a 10-percent disability rating, for a combined disability rating of 20 percent.  The PEB also recommended the applicant be separated from the service with entitlement to severance pay if otherwise qualified.  The applicant concurred with the PEB’s findings and recommendations and waived his right to a formal hearing of his case.

7.  The applicant was honorably discharged on 30 November 2007.  The DD Form 214 he was issued shows he completed 4 months and 5 days of active service during this period of enlistment.  

8.  The applicant submitted various medical charts, reports, treatment records, evaluations, examinations, and other medical documents, dated on miscellaneous dates throughout his last period of enlistment, that essentially show he suffered chronic back pain and right shoulder pain.  

9.  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 or her office, grade, rank, or rating.  It provides for MEBDs, 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.

10.  Paragraph 3-1 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.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated

11.  Army Regulation 40-501 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 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.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

12.  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 of 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 of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired instead of honorably separated for medical disability.  

2.  PEBs are established to evaluate all cases of physical disability equitability 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 recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The evidence of record shows that the applicant suffered from medical conditions that rendered him unable to satisfactorily perform the duties of his grade and specialty.  His immediate commander and medical personnel recommended his referral to a MEBD; they did not recommend his referral to a MMRB.  Consequently, his records were evaluated by an MEBD that referred him to a PEB.  The PEB found him medically unfit and rated his disabling condition at 20 percent and recommended his separation by reason of physical disability with entitlement to severance pay.  

4.  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.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES.  There is no evidence to show any other conditions rendered the applicant unfit.  The applicant was properly rated at 20 percent for his chronic back and shoulder pain. 

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.  There is no error or injustice in this case.  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.  Therefore, 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)                                         AR20090006067



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ABCMR Record of Proceedings (cont)                                         AR20090006067



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