IN THE CASE OF:	

		BOARD DATE:	  8 January 2010

		DOCKET NUMBER:  AR20090009586 


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 reconsideration of his earlier request that his records be corrected to show he was medically retired.

2.  The applicant states he has obtained additional medical documentation warranting a reconsideration of his previous application.  He was transferred to Fitzsimons Army Medical Center to be medically boarded out of the service but his medical discharge papers were torn up and he was returned to regular duty.

3.  The applicant provides copies of a Report of Medical History, two Disposition Forms, a Standard Form 509 (Progress Notes), a letter from a former employer, and two private medical assessments.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080016731 on 27 January 2009.

2.  The applicant served on active duty from 12 July 1977 through 11 July 1980 having completed 3 years of honorable active service. 


3.  Except for the Report of Medical History, the Report of Medical Examination, and the limited documents provided by the applicant, his service medical records were not available for review. 

4.  The Report of Medical History shows multiple complaints and concerns voiced by the applicant.  The Report of Medical Examination associated with the History notes multiple somatic complaints, chronic back pain, persistent headaches secondary to cerebral-spinal pain, and planters warts.

5.  A 29 November 1979 Disposition Form states that the applicant is a good worker and knows his job well; however, due his continued health problems since an accident the previous year, he cannot be depended on to be able to perform his assigned duties. 

6.  A 14 December 1979 Disposition Form states the applicant had been seen by this physician a number of times over the past year.  The physician states that although his fracture has healed the applicant is still experiencing significant pain.  The doctor points out that a "Medical Board" stated that the applicant's range of motion had not been tested.  The doctor recommended the applicant be administratively separated for his medical problems.

7.  A 13 November 1980 Progress Note states the applicant was a recent discharge from the Army and is service connected with an 80 percent disability rating for a neck injury.  In the Progress Note it was stated that the applicant continues to have pain and was referred to neurosurgery for evaluation.

8.  A Department of Veterans Affairs Rating Decision, dated 9 December 1980.  states the applicant was awarded a combined disability rating of 70 percent for the following service-connected disabilities: fracture of Odontoid process with loss of motion of neck and muscle spasms; spastic reflexes, right and left upper extremities; spastic reflexes, right and left lower extremities; headaches; plantar warts; and low back pain.

9.  A 28 January 1982 letter from G. L. H____ states that the applicant had to be released from his training due to his medical problems.

10.  A 28 February 1984 letter from Doctor D___ D_____ states that the applicant suffered from a C-1 fracture during his military career and was continuing to experience spasticity in his extremities, back and leg pain, and was unable to hold down a full-time position due to his medical problems.

11.  A Neurosurgical Associates Case Record, dated 18 February 1991, diagnosed the applicant with hyper-flexia with spastic quadriparesis.  He has degenerative disc disease at C2-3 and C7-T1.

12.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he has obtained additional medical documentation warranting a reconsideration of his previous application.  He was transferred to Fitzsimons Army Medical Center to be medically boarded out of the service but his medical discharge papers were torn up and he was returned to regular duty.

2.  While the additional documents show the applicant was suffering from some medical problems at the time of his separation, the record does not contain and the applicant has not provided supporting documentation to show that he underwent an MEB/PEB evaluation or consideration and was found unfit for duty. The preponderance of evidence shows he was separated due to an expiration of his period of obligated active service.

3.  The medical records showing post-service care and his evaluations are insufficient to show what his medical condition was at the time of his release from active duty.



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 has failed to submit evidence that would satisfy that requirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080016731 on 27 January 2009.




      _______ _   _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)                                         AR20090011550



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009586



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1