IN THE CASE OF:	  

		BOARD DATE:	 4 February 2010 

		DOCKET NUMBER:  AR20090012785 


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, through his Member of Congress, in effect, correction of his records to show he was medically retired instead of honorably discharged with severance pay.

2.  The applicant states that he had 18 years of service and was given an honorable discharge instead of a medical retirement subsequent to a medical evaluation board (MEBD) and physical evaluation board (PEB).  He was awarded a 10-percent disability rating by the Army which was later increased to a          70-percent by the Department of Veterans Affairs (DVA).  He was put out at 18 years of service because of a last minute upgrade of his physical profile from a P2 to a P3 making him non-deployable.  He was not given time to consider his options nor were his options explained to him.  He feels that he was just shuffled out of the Army without explaining the type of discharge and without any legal options. 

3.  The applicant provides, through his Member of Congress, the front page of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 26 October 2006; a copy of the Fort Sill, OK, MEBD Internal Tracking Tool, dated 9 January 2007; a copy of his immediate commander's duty evaluation memorandum, dated 3 October 2006; and a copy of Orders 347-0694, issued by Headquarters, U.S. Army Garrison, Fort Sill, OK, on 13 December 2006, in support of his request. 



CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army (RA) for a period of 4 years on 15 November 1988.  He held military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  He executed several extensions and/or reenlistments in the RA including three 4-year reenlistments on 15 June 1993, 11 May 1995, and 2 September 1998, and a 6-year reenlistment on 1 November 2001. 

2.  The applicant’s records also show he completed two overseas tours in Korea and two in Germany.  He attained the rank/grade of staff sergeant (SSG)/E-6.

3.  In January 2006, the applicant underwent a magnetic resonance imaging (MRI) that detected a chronic degenerative joint disease of the lumbar spine with chronic low back pain.  He was subsequently evaluated in March 2006 with a recommendation for conservative therapy but no surgery.  He was also followed a negative bone scan and steroid injection performed since June 2006 with no benefit to him.  His Narrative Summary (NARSUM), dictated on 29 September 2006, shows he was overweight and out of shape with poor overall flexibility.  He was unable to do his job, wear combat gear, or do numerous aspects of physical training.  He had a second MRI on 14 September 2006 that showed mild to moderate right neuroforaminal stenosis with mild left neuroforaminal stenosis at L5-S1.  The attending physician indicated that the applicant's condition did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended his referral to the Physical Disability Evaluation System (PDES). 

4.  On 29 September 2006, a MEBD convened at Reynolds Army Community Hospital, Fort Sill, OK, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant had the medical condition of Lumbago.  The MEBD recommended that he be referred to a PEB.  The applicant agreed with the MEBD’s findings and recommendation and indicated that he desired to continue on active duty. 

5.  On 3 October 2006, by memorandum, the applicant's immediate commander remarked that the applicant was physically incapable of reasonably performing his duties as a 63B due to his chronic back problems.  His back prevented him from performing the duties of a light, heavy, or track vehicle mechanic.  He is a good noncommissioned officer but his MOS is physically demanding and he was unable to adhere to those demands.  His duties required him to perform maintenance on vehicles but he was unable to do his job.  His unit was in the middle of a deployment rotation and the Soldier had to be left behind.  

6.  On 25 October 2006, by memorandum, the applicant submitted a request for continuation on active duty (COAD).  He stated that if he were determined unfit because of physical disability, he would like to continue on active duty and be assigned to duties within the limitations imposed by his physical disabilities.  

7.  On 26 October 2006, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic low back pain without neurological deficit (range of motion limited by pain; positive spasm).  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10-percent disability rating for codes 5299 and 5242.  The PEB indicated that the applicant had applied for COAD and recommended that the applicant be separated with entitlement to severance pay, if his application for COAD was denied.

8.  On 31 October 2006, the applicant elected not to concur with the PEB’s finding and recommendation, waived his right to a formal hearing of his case, and indicated that his written appeal was enclosed.  A copy of his written appeal is not available for review with this case.  Additionally, on that date:

	a.  He and his counselor authenticated the DA Form 199 and placed their signatures in the appropriate places.  Additionally, the DA Form 199 shows the following entry as an indication of proper counseling by his counselor: I have informed the Soldier of the findings and recommendations of the PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto.  The Soldier has made the election(s) shown above.

	b.  He authenticated a DA Form 5893-R (PEBLO (Physical Evaluation Board Liaison Officer) Counseling Checklist/Statement) in which he indicated that he had been counseled with regards to the MEBD report; the appeal procedures; the PEB adjudication, findings, and recommendations; his right to a representation by counsel before a formal hearing; right to call witnesses; and other rights. 

9.  On 31 October 2006, the applicant submitted a statement in which he stated "After much consideration, I wish to accept the PEB rating of 10 percent and receive severance pay, which is a lump sum payment from the Army and no other benefits.  I understand that if my request for COAD is not approved by the Department of the Army, I will lose my eligibility to remain on active duty and retire from the service."

10.  On 6 November 2006, the U.S. Army Physical Evaluation Agency (USAPDA) reviewed the applicant's PEB proceedings together with his written statement and approved the PEB's findings and recommendations on behalf of the Secretary of the Army. 

11.  On 9 January 2007, the applicant was honorably discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  The DD Form 214 he was issued shows he was awarded $71,964.00 in severance pay.  This form also shows he completed 18 years, 1 month, and 25 days of creditable active service.

12.  An advisory opinion was obtained on 27 November 2009 in the processing of this case.  An official at the USAPDA recommended no change to the applicant's military records.  He did not provide any evidence of error in regard to his separation from the military.  The official stated:

	a.  on 26 October 2006, an informal PEB found the applicant unfit for his chronic low back pain and rated him at 10 percent and recommended his separation with severance pay.  On 31 October 2006, the applicant elected not to concur with the PEB's findings and recommendations, waived his right to a formal hearing, and submitted no written rebuttal.  He submitted some medical documents that had already been considered in which he circled some words related to his leg pain.  The PEB responded to the documents provided indicating that the PEB had already considered the issue and that the preponderance of evidence did not support a separate unfit finding for his leg pain.  

	b.  on 25 October 2006, the applicant requested COAD.  The applicant was forwarded to the U.S. Army Human Resources Command (USAHRC) for review and action.  However, on 5 December 2006, the applicant withdrew his request for COAD from USAHRC and accepted the separation with severance pay.  Soldiers found unfit due to a disability are not protected (sanctuary) from separation/retirement for disability even if they have 18 years or more of military service (Title 10, U.S. Code (USC), section 1176). 

	c.  the applicant was fully counseled on all his rights as evidenced by his COAD application and non-concurrence with the PEB's findings (See DA Form 5893-R, PEBLO Counseling Checklist/Statement, signed by the applicant on 31 October 2006). 

13.  On 18 December 2009, the applicant was provided with a copy of this advisory opinion; however, he failed to respond within the allotted time. 

14.  Title 10, USC, 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, USC, 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.  

15.  Title 10, USC, section 1176, provides for retention of enlisted members after completion of 18 years or more but less than 20 years of service.  It states that a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within two years of qualifying for retirement under section 3914 or 8914 of this title, shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law. 

16.  Department of Defense Instructions (DODI) 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation.  All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.  

17.  DODI 1332.39 implements policy, assigns responsibilities, and prescribes procedures, under the authority of DOD Directive 1332.18, 4 November 1996, for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement under Title 10, USC.  Paragraph E2.A1.1.20.1 states that a zero percent rating shall be awarded for chronic low back pain of unknown etiology (mechanical low back pain).  It also states that low back pain caused by degenerative arthritis is rated under code 5242 of the VASRD. 

18.  Army Regulation 635-40 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.  

19.  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.  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.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

20.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.  When an unlisted disease, injury, or residual condition is encountered, the diagnostic code number will be built-up. The first two digits will be selected from the schedule of the involved body part and the last two digits will be 99.  Code 52 deals with the musculoskeletal system.  Code 5242 assigns a 10 percent disability rating in the case of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height	.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired instead of honorably separated for disability with entitlement to severance pay.

2.  The evidence of record shows the applicant underwent a thorough medical evaluation that resulted in a diagnosis of the medically unacceptable condition of low back pain.  He subsequently underwent an MEBD which recommended that he be referred to a PEB.  He agreed with this recommendation.  The PEB considered low back pain condition/degenerative spine arthritis listed by the MEB and found his condition prevented him from performing his duties.  The PEB thus determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.  

3.  He was counseled and was informed of the findings and recommendations of the PEB as well as his legal rights pertaining thereto.  Based on this counseling, he elected not to concur with the findings and recommendations, waived his right to a formal hearing of his case, and submitted a written appeal.  He also submitted a request for COAD.  His appeal was considered by the USAPDA but he withdrew his request for COAD.  The PEB was ultimately approved on behalf of the Secretary of the Army and he was honorably discharged with entitlement to severance pay.

4.  The PEB correctly rated the applicant's condition at 10 percent based on his limited range of motion.  There is no evidence in the available medical records and the applicant did not provide any medical evidence to support a higher rating or medical retirement.  Since he was rated at less than 30 percent, he does not qualify for a medical retirement.

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.  It is acknowledged that the applicant had 18 years, 1 month, and 25 days of creditable active service; however, a Soldier who is found unfit due to a disability is not protected from a medical discharge by reason of disability even if that Soldier had 18 years or more. 

6.  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.  In view of the circumstances in this case, there is insufficient evidence to grant him 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)                                         AR20090012785



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ABCMR Record of Proceedings (cont)                                         AR20090012785



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