IN THE CASE OF:	

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090010971 


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, in effect, increase of his disability rating to 30 percent or more (i.e., a medical retirement).

2.  The applicant states, in effect, that he was medically discharged but not medically retired.  He points out that his Medical Evaluation Board (MEB) proceedings show he had two medical conditions (chronic left shoulder pain status post-surgery and chronic low back pain with herniated nucleus pulposis L5-S1); however, the Physical Evaluation Board (PEB) found him unfit for duty for shoulder pain and determined that his herniated disk was not unfitting, not rated.  He claims that it must have been a mistake or the PEB knowingly refused to rate his herniated disk condition so that he would not be medically retired.

3.  The applicant points out that paragraph 3-39e of Army Regulation 40-501 (Standards of Medical Fitness) clearly states that a service member is not fit for duty if they have a herniated nucleus pulposis with more than mild symptoms following appropriate treatment, with findings that it interferes with satisfactory performance of duty.  He claims that his company commander stated in his letter to the board that he could only do his duty in a limited capacity due to his back and shoulder injuries.  The company commander did not say that only his shoulder affected his performance.  He contends that his back injury clearly interferes with his performance and duty and made him unfit for duty.

4.  The applicant provides a copy of his MEB and PEB proceedings and service medical records in support of his application.

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.  Having prior active service in the U.S. Marine Corps (USMC), the applicant enlisted in the Regular Army (RA) on 21 January 1999 for a period of 3 years.  He was honorably discharged on 17 October 2001 for immediate reenlistment.  He reenlisted on 18 October 2001 for a period of 2 years.

3.  On 1 November 2002, an MEB diagnosed the applicant with chronic left shoulder pain status post-surgery and chronic low back pain with herniated nucleus pulposis L5-S1.  The MEB recommended referral to a PEB.  On 
22 November 2002, the applicant agreed with the MEB's findings and recommendation.

4.  On 25 November 2002, an informal PEB found the applicant physically unfit due to chronic left shoulder pain status post-surgery.  MEB diagnosis 2 was found to be not unfitting, not rated.  Medical documentation apparently showedhat although a Magnetic Resonance Imaging indicated that there was a herniated disc, the physical examination showed no real support that such condition provided any significant physical restrictions on the applicant in 2002.  The findings showed that, notwithstanding some claims of pain and diminished sensation in one leg, the applicant could touch his hands to the floor demonstrating full range of motion of his back and all physical findings showed full strength and normal reflexes and gait.  Putting all those together the PEB apparently found that the main problem was his shoulder and the physical findings did not support an unfit finding for his back.

5.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay.  On 9 December 2002, the applicant concurred with the PEB’s findings and recommendations and waived a formal hearing.
6.  On 12 December 2002, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB’s findings and recommendations.

7.  On 17 March 2003, the applicant was honorably discharged by reason of physical disability with severance pay in the amount of $29,184.00 based on a
10 percent disability rating percentage.  He had completed a total of 8 years,
5 months, and 27 days of creditable active service.

8.  Title 10, U. S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

10.  Army Regulation 635-40 further states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

11.  Paragraph 3-39e of Army Regulation 40-501 states that herniation of nucleus pulposus (more than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty) is a cause for referral to an MEB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that paragraph 3-39e of Army Regulation 40-501 clearly states that a service member with herniated nucleus pulposis is not fit for duty.  The regulation states that herniation of nucleus pulposus (more than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty) is a cause for referral to an MEB.  The applicant's medical condition (chronic low back pain with herniated nucleus pulposis L5-S1) was appropriately referred to an MEB.

2.  The applicant's contention that his back injury clearly interfered with his performance and made him unfit for duty was noted.  However, a physical examination showed the applicant could touch his hands to the floor, demonstrating full range of motion of his back, and all physical findings showed full strength and normal reflexes and gait.  The PEB found him physically unfit due to chronic left shoulder pain status post-surgery and determined that his chronic low back pain with herniated nucleus pulposis L5-S1 was not unfitting, not rated.  It appears the PEB properly found that the main problem was his shoulder and that the physical findings did not support an unfit finding for his back.  

3.  There is insufficient evidence to show the applicant’s disability was improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is insufficient evidence on which to increase his disability rating.

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)                                         AR20090010971



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010971



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1