IN THE CASE OF:	

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20090010932 


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.  Through a court remand action, the applicant requests, in effect, reconsideration of his earlier petitions to the Board requesting that his voidance of induction discharge be changed to a medical discharge.   

2.  As new evidence in support of his reconsideration request, the applicant provides a Department of Veterans Affairs (VA) travel board scheduling letter and a packet of photographs taken while he was attending basic training at Fort Polk, Louisiana.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  As a result of a court remand from the District Court for the Eastern District of Louisiana, counsel from the Army Legal Services Agency requests, in effect, that the applicant’s case be reconsidered by the Board.  

2.  Counsel states, in effect, that the court remand action requires the applicant be provided the opportunity to have his case considered using all the evidence he has, to include the new evidence he now submits; that the medical documents containing the findings of July and October of 1968 be reviewed again; and that the applicability of the presumption of soundness as it relates to aggravation of the medical condition that existed prior to service (EPTS) in this case be considered and discussed.  


3.  Counsel provides the court remand packet with the 12 exhibits identified on the cover letter in support of the reconsideration request.   

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070009747, on 20 December 2007; and in Docket Number AR20080002199, on 24 April 2008.  

2.  The applicant provides photographs taken during his basic training as new evidence.  These photographs display Soldiers involved in various training activities.  Only two of the photographs include the applicant.  One was a year book photograph of him in his dress (Class A) uniform and the other shows him sitting at a training table during a weapons breakdown class.  He is not identified in any of the photographs provided that display strenuous training activities.  

3.  The evidence of record established during the two prior reviews of the case by the Board confirms the applicant admitted an EPTS medical condition in a 
DD Form 398 (Statement of Personal History) he completed during his induction processing when he noted the following physical defects in item 20 (Remarks):  "1/2 inch shortening of the left lower extremity in comparison to the right"; "possibility of muscle spasm on the left side"; "possibility of swelling of the soft tissue including the synovium around the right hip"; and the "need to wear left shoe with corrections to try to compensate with back pain."  It also establishes that this pre-existing medical condition was noted on the Standard Form (SF)    88 (Record of Medical Examination) documenting his induction physical examination, which contained the notations "Ortho - shortening, no limp, x-rays negative" and "employed as pipe fitter, fit for duty."  

4.  On 18 June 1968, the applicant underwent an induction medical examination during his induction processing at the New Orleans, Louisiana, Armed Forces Examination and Entrance Station (AFEES), now known as the Military Entrance Processing Station (MEPS).  The SF 88 notes, in item 73 (Significant or Internal History), that an orthopedic examination of the applicant revealed a 1/2 inch shortening in one limb and that an x-ray was negative.  It further noted that the applicant was employed as a pipe fitter and was fit for duty.  The examination does not specify what specific part or parts of the body were x-rayed (whether it was his back, hip, or leg).  

5.  A DD Form 398 the applicant completed on 17 July 1968 contained a note in item 20 that documented the fact his left leg was 1/2 inch shorter than his right and that he needed to wear corrective shoes to compensate for low back pain.  
6.  On 23 July 1968, the date the applicant was scheduled to depart for active duty, a Physical Inspection was completed on him at the New Orleans AFEES. This inspection noted no additional defects were discovered and that the applicant was fit for military service.  

7.  The evidence of record also confirms the applicant was inducted into the Army, entered active duty on 24 July 1968, and began basic training on or about 28 July 1968, at Fort Polk, Louisiana.  It also confirms that the applicant was undergoing orthopedic treatment and care throughout his first six weeks of training.  

8.  On 16 October 1968, a SF 519A (Radiographic Report) completed on the applicant  shows a fluro of the lumbar spine revealed some change in the angulation in the L-5/S-1 level with also opening and closing of the L-5/S-1 disc space on flexion and extension, possibly excess motion in this area.  No other abnormalities were noted.   

9.  On 23 October 1968, a DA Form 8-274 (Physical Profile Record) completed on the applicant shows he was assigned a permanent (P) 2 profile based on unstable L-5/S-1 vertebrae causing low back syndrome.  A note attached to this form, dated 26 September 1968, confirms the applicant had received orthopedic treatment and consideration during his first six weeks of basic training.  It further indicated he had been excused from physical training pending a final medical evaluation.  

10.  On 30 October 1968, a DA Form 8-274 completed on the applicant shows he was assigned a P3 profile for low back pain, spondylolysis instability L-5/S-1 and that he was suspended from training pending a medical board.  This was the first identification of spondylolysis, which is a defect in the pars interarticularis of a vertebra and in the great majority of cases occur in the lowest of the lumbar vertebrae (L5).  It occurs in three to seven percent of the population and also runs in families, which suggests a hereditary component.  

11.  The applicant’s Official Military Personnel File is void of a complete separation packet with medical board proceedings containing all the facts and circumstances surrounding the applicant’s discharge processing.  It does contain a request for discharge from the applicant, dated 30 October 1968, in which he voluntarily requested discharge by reason of erroneous induction because he did not meet medical procurement standards.  As a matter of process, the applicant's opportunity to request discharge only could have occurred as a result of a medical board recommendation and the applicant's concurrence and acceptance of the EPTS nature of his unfitting condition.  

12.  The record does contain a properly constituted DD Form 214 that identifies the authority and reason for the applicant’s discharge, and the applicant authenticated this document with his signature in item 33 (Signature of Person Being Transferred or Discharged) on the date of his discharge, which was 
19 November 1968.  

13.  During the processing of this case, a medical review was requested and obtained from the Army Review Boards Agency (ARBA) internal Medical Advisor, who concluded there was nothing contradictory regarding the applicant’s physical condition before and after entry on active duty.  This medical advisor is assigned to ARBA to provide ABCMR analysts expert medical advice to resolve case related medical issues.  This medical official states that the applicant described symptoms that he related to a short leg and indeed a short leg might have caused enough pelvic tilt to cause his spondylolysis to be symptomatic.  

14.  The ARBA medical advisor further confirmed that spondylolysis would not be reasonably expected to be identified during a normal in-processing examination.  He also indicates the applicant was not symptomatic at the time of his induction exam and his x-ray did not reveal his spondylolysis.  Increased physical activity triggered a recurrence of his symptoms and the subsequent fluoroscopy that revealed spondylolysis.  He concludes by indicating that the applicant had an EPTS condition that went un-named until his fluoroscopic exam on active duty.  He states that even if the applicant was known to have spondylolysis, a trial at training could have been acceptable because many people function normally with spondylolysis.  He further confirms that applicants at the MEPS are often noted to have flat feet; however, they are not always symptomatic and many people with this finding do well in training and with a variety of physically demanding activities.  Some do not do well and are eventually separated for an EPTS condition.  

15.  Army Regulation 601-270 (Armed Forces Examining and Entrance Stations), in effect at the time, prescribed the primary functions of the AFEES.  Paragraph 69 contained guidance on the scope of the physical inspection.  It stated, in pertinent part, that applicants for enlistment or induction who had undergone a medical examination of the prescribed scope within 180 days prior to the induction processing and been found medically qualified would undergo a physical inspection.  The examining physician would review the previous medical examination reports and any accompanying additional documents and discuss with the examinee any intervening injuries and illnesses, or any other health problems not a matter of record.  The examinee, with clothing removed, would be closely observed by the examining physician to detect the presence of any communicable diseases and apparent (emphasis added) defects not previously recorded.  


16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards, which include the medical fitness standards for enlistment, induction, and appointment.  Chapter 2 outlines physical standards for enlistment, appointment and induction and states, in pertinent part, that enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the standards must be evaluated by a medical evaluation board (MEB).  The Soldier will then be referred to a physical evaluation board (PEB) unless the Soldier waives his or her right to the PEB in accordance with Army Regulation 635-40.  

17.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code and Department of Defense Directive (DODD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.   

18.  Paragraph 3-2 of the PDES regulation identifies presumptions that apply to physical disability evaluation and states, in pertinent part, that there is a presumption that a Soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry.  This presumption may be overcome by a preponderance of the evidence that a disqualifying condition existed prior to service.  

19.  Chapter 9 of the PDES regulation, in effect at the time of the applicant’s discharge, provided the procedures for the expeditious discharge for disabilities existing prior to service.  It provided that when an enlisted member on active duty was believed to be incapable of performing his duties with reasonable effectiveness because of a disability, which was believed not to have been aggravated during any period of active service, the commander concerned would initiate action to request a physical examination.  The medical examination would be forwarded to a medical board for use in consideration of the case and a medical board evaluation would be accomplished.  It further stated that when the medical board recommended a member be separated because of medical unfitness which existed prior to entry into military service or which was incurred when the member was not entitled to basic pay and which had not been aggravated by such service, the medical treatment facility commander would cause the member to be offered the opportunity for expeditious separation, if he was otherwise eligible.  


20.  Chapter 9 of the same regulation also identified counseling and processing requirements and stated, in pertinent part, that the medical treatment facility commander would refer the case to the Physical Evaluation Board (PEB) Liaison Officer (PEBLO) for explanation of benefits, advice on his rights, and the offer of an opportunity for expeditious discharge, if the member agreed with the existed prior to service aspects of his disability.  It further stated, in pertinent part, that the PEBLO was required to advise the member of his right to demand a full and fair hearing before the PEB.  

21.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 provides the authority to separate members for the convenience of the government, which includes the separation of personnel who do not meet procurement medical fitness standards if the disqualifying medical condition is discovered within the first six months of active duty.  The version of the  regulation in effect at the time of the applicant’s discharge authorized commanders to order the discharge of members who were not medically qualified under medical fitness standards when accepted for induction or enlistment.  

22.  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 ABCMR.  Paragraph 1-8 contains guidance on the operation of the ABCMR and states, in pertinent part, that members will review all applications that are properly before them to determine the existence of error or injustice, deny applications when the alleged error or injustice is not adequately supported by the evidence, and deny applications when the application is not filed within prescribed time limits and when it is not in the interest of justice to excuse the failure to file in a timely manner.  It stipulates, in pertinent part, that the ABCMR will decide cases on the evidence of record.  It is not an investigative body, and will begin 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. 

DISCUSSION AND CONCLUSIONS:

1.  The court remanded this case based on questions it had regarding why a presumption of soundness was not applicable in the applicant’s case given the two physical examinations conducted prior to his induction that found him fit for duty.  


2.  As a matter of policy the Army accepts many members with EPTS conditions on the chance that they can successfully complete training and serve.  When disqualifying symptoms occur during training or within the first six months of active duty service, these individuals are procedurally subject to separation based on the EPTS condition.  

3.  In several places in the court record, the court refers to the two “fit for duty” evaluations the applicant had prior to entering active duty.  In fact, the applicant had only one physical exam, the one performed at the New Orleans AFEES in June 1968, which at that time found him physically qualified for induction.   The second evaluation the applicant underwent in July 1968 is called a “physical inspection” and is performed at the AFEES on the day an applicant ships out to active duty.  This inspection is performed just to ensure the applicant is ready to start basic training.  If the applicant has a febrile illness, an acute infection (e.g., an ingrown toenail), a plaster cast on an extremity, or any number of other temporary or permanent maladies, his ship date can be moved back or cancelled entirely.  This is not another physical exam but is a cursory inspection and interview prior to shipping for active duty.  

4.  The court also mentions the spine x-ray the applicant received at the AFEES several times.  However, there is no indication that the applicant received a spine x-ray during his induction processing.  The record shows only that the applicant complained of a leg that was 1/2  inch foreshortened and he was apparently seen by an orthopedist.  It is more reasonable to presume that the x-ray done was a leg x-ray to look for proper healing of a possible old fracture that shortened the leg.  At any rate, even a spine x-ray would not have detected the change seen by fluoroscopy that was later completed at the Army medical clinic.  Fluoroscopy allows for x-ray in motion and would have better shown the instability noted only on flexion.  

5.  The court also refers to “spondylosis,” which is a degenerative arthritis that could possibly worsen with activity.  It would be present more as chronic low back pain.  The applicant had spondylolysis, which is present in about 
3-7 percent of the general population and is quite variable from one person to the next as far as symptoms are concerned and has a hereditary component.  Many do not even know they have the condition.  It is not directly related to leg length discrepancy and could easily explain why the applicant had no symptoms at the AFEES.  Even a spine x-ray would not reliably show spondylolysis unless it was an oblique x-ray.  This x-ray would not have been performed at the AFEES in the evaluation of a short leg.  


6.  By regulation, there is a presumption that a Soldier was in sound physical and mental condition upon entering active service (presumption of soundness) except for physical disabilities noted and recorded at the time of entry or when there is a preponderance of evidence of an EPTS condition that is discovered within the first six months of active duty.  

7.  The evidence of record confirms that although he was found fit for duty during his entrance physical examination, there were aspects of his condition (shortening of leg) noted on his medical examination report.  The applicant acknowledged a condition (low back pain) in a DD Form 398 he completed during his induction processing.  The disqualifying medical condition was his spondylolysis, which was discovered within six months of his entry on active duty after the applicant had been under constant medical care and observation during his first six weeks of basic training.  As a result, absent any medical evidence confirming aggravation of the EPTS condition beyond normal progression, there is a preponderance of evidence confirming this was an EPTS condition, that was not recorded at the time he entered active service, and as a result it appears the presumption of soundness is not applicable in this case.  

8.  The available evidence does not include a complete separation packet containing all the facts and circumstances surrounding the applicant’s discharge processing.  However, it does include a voluntary request for discharge from the applicant and a properly constituted DD Form 214 that identifies the authority and reason for applicant’s final discharge.  Therefore, Government regularity in the discharge process must be presumed.  The applicant’s DD Form 214 confirms he was discharged under the provisions of Paragraph 5-9, Army Regulation 635-200, by reason of voidance of induction due to not meeting medical procurement standards.  In connection with such a discharge, a medical board would have determined the applicant suffered from an unfitting EPTS medical condition.  

9.  By regulation, in order to be discharged due to an EPTS medical condition, the applicant would have had to been counseled on his right to demand a formal hearing before a PEB by a PEBLO, and would have had to concur with the EPTS aspects of his disabilities prior to submitting a voluntary request for expeditious discharge.  The record shows the applicant voluntarily requested expeditious discharge by reason of erroneous induction based on his not meeting induction medical standards.   There is no evidence suggesting the applicant requested or was denied processing through the PDES, or that he ever requested (demanded) a hearing before the PEB, which was his right to do.  To the contrary, the evidence confirms he voluntarily requested expeditious discharge due to his EPTS medical condition, which in effect confirms he elected not to demand a PEB hearing of his case and that he agreed to the EPTS aspects of his condition, which would have been established by a medical board.    
10.  The governing regulation stipulates that members of the ABCMR will review all applications that are properly before them to determine the existence of error or injustice, deny applications when the alleged error or injustice is not adequately supported by the evidence, and deny applications when the application is not filed within prescribed time limits and when it is not in the interest of justice to excuse the failure to file in a timely manner.  It stipulates, in pertinent part, that the ABCMR will decide cases on the evidence of record.  It is not an investigative body, and will begin 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.  

11.  The medical evidence of record confirms the applicant was under medical care throughout most of his basic training.  The medical treatment records on file and provided by the applicant fail to support a conclusion that his EPTS medical  condition was aggravated beyond normal progression in the few short months he served, the majority of which he was under medical care and supervision.  The EPTS determination would have had to have been made by a medical board, which given the applicant was under medical supervision throughout most of his time on active duty, would have been based on a comprehensive medical treatment record and completed in conjunction with the applicant's decision not to elect processing through the PDES (PEB) just prior to submitting his request for expeditious discharge.

12.  Further, although the Board elected to review the applicant's case on the merits outside of the established statute of limitations, this clearly resulted in Board reviews based on incomplete records.  Had the applicant petitioned the ABCMR for relief in a timely manner, it likely would have resulted in a more thorough review based on more complete records, which probably would have included a complete separation packet with medical board proceedings and counseling records.  These files were obviously no longer in the record when the applicant first applied to the Board, nearly 40 years after the fact, and were most likely requested by and provided to either the applicant and/or the VA when he first applied to that agency for disability benefits.  

13.  At the time of the applicant’s discharge, medical and separation records were not copied and retained in the military record once requested by and provided to a member and/or the VA for disability claim purposes.  Clearly, had the applicant applied to the ABCMR within its 3-year statute of limitations a more informed decision based on all the records could have been rendered by the Board.  The application to the VA for disability benefits and the creation of a VA record on the applicant provides little assistance in determining if his Army discharge was proper and equitable.  

14.  The existing evidence of record and the independent evidence provided by the applicant fail to provide sufficient evidence of a compelling nature that would overcome the presumption of regularity attached to his DD Form 214, or that would support a conclusion of error or injustice related to his discharge processing.  The regulatory burden of proof to show error or injustice related to his discharge processing rests with the applicant, not with the members of the Board.  

15.  During both of its prior reviews of this case, the Board concluded that the applicant had failed to satisfy the burden of proof necessary to overcome the presumption of regularity attached to his discharge processing, and the new evidence he now provides also fails to meet the evidentiary standard to satisfy his burden of proof.  

16.  Further, absent any evidence to the contrary, it is presumed the applicant’s discharge processing was accomplished in accordance with the applicable law and regulation in effect at the time and that his rights were fully protected throughout his discharge processing.  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 this requirement or that would support amendment of the previous Board decisions in this case. 

17.  Notwithstanding the court’s concerns, there is no evidence suggesting the applicant’s discharge processing was improper or inequitable, or that the previous decisions of the ABCMR were arbitrary or capricious.  These decisions were clearly supported by the available evidence of record and by the absence of compelling independent evidence provided by the applicant to overcome the presumption of regularity applicable in this case.  

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 AR20070009747, dated 20 December 2007; and in Docket Number AR20080002199, dated 24 April 2008.  




      _______ _   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)                                         AR20090010932



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010932


11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1