IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090015218 


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 a medical discharge.

2.  The applicant states, in effect, he deserves a medical discharge because the Department of Veterans Affairs (DVA) awarded him a 10 percent, service-connected disability for a chronic lumbar strain with levorotational scoliosis and diffuse spondylosis.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 November 2001; and a 6-page DVA Rating Decision, dated 20 July 2002. 

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.  The applicant enlisted in the North Carolina Army National Guard (NCARNG) on 21 July 2000.  He was ordered to active duty for training (ADT) on 29 May 2001, but he did not successfully complete ADT.

3.  The applicant's records do not contain the specific facts and circumstances concerning his separation processing.  However, his DD Form 214 shows on
27 November 2001, he was released under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations) due to "ENTRY LEVEL PERFORMANCE AND CONDUCT" and transferred back to the NCARNG.  His DD Form 214 also shows he completed 5 months, and 29 days of creditable active service that is "UNCHARACTERIZED."  

4.  NCARNG Orders 272-088, dated 8 December 2001, confirms the applicant was discharged from the Army National Guard on 27 November 2001 with "Uncharacterized" service.

5.  The applicant's medical records are not available.

6.  The applicant provided a 6-page DVA Rating Decision, dated 20 July 2002.  The DVA rated him 10 percent disabled for chronic lumbar strain with levorotational scoliosis and diffuse spondylosis.

7.  Army Regulation 635-200, chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry-level status and, before the date of the initiation of separation action, have completed no more than 
180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that does not qualify for retention:  cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. 

8.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.


9.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The DVA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  

10.  Scoliosis is a sideways curvature of the spine that occurs most often during the growth spurt just before puberty; levoscoliosis is a leftward curvature.  While scoliosis can be caused by conditions such as cerebral palsy and muscular dystrophy, the cause of most scoliosis is unknown.

11.  Spondylosis is a type of arthritis of the spine.  It involves growth of osteophytes (bony protrusions) of the bones which form the openings through which nerves from the spine pass.  These openings are called foramina (singular "foramen").  If the spondylosis is sufficiently severe, the osteophytes can make the foramina so small that the exiting nerve root is pinched.  This can cause radicular pain.  Radicular pain is pain radiating from the spine (usually into an extremity), caused by pressure on a nerve root.  Not all spondylosis causes pinched nerves.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a medical discharge.

2.  The applicant was not discharged for medical reasons.  He was discharged because of performance and conduct issues.  There is no evidence to show he had any unfitting physical condition prior to release from active duty on 27 November 2001.

3.  The DVA rated the applicant 10 percent disabled for mild scoliosis and diffuse spondylosis.  However, he was not discharged because he could not perform physically; he was discharged because of conduct and performance. 

4.  The award of a DVA rating does not establish entitlement to medical retirement or separation.  The DVA is not required to find unfitness for duty.  Operating under its own policies and regulations, the DVA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the DVA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the applicant's discharge was proper and equitable.

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)                                         AR20090015218



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ABCMR Record of Proceedings (cont)                                         AR20090015218



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