BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090020868 


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 previous request for physical disability retirement.

2.  The applicant states in rebuttal to the original Record of Proceedings:

* he has documented active federal service of 19 years, 3 months, and 16 days
* he is entitled to the "presumption for fitness rule"
* the Physical Evaluation Board (PEB) did not evaluate his performance of duties in his primary military occupational specialty (PMOS)
* the PEB used a diagnostic code prohibited by Department of Defense Instruction (DODI), which misrepresented his injury
* the PEB used worldwide deployability as the sole criteria for establishing unfitness
* his PEB Liaison Officer (PEBLO) did not have complete and accurate information, thereby denying him due process

3.  The applicant provides:

* an undated, 1-page document labeled "Brief"
* a 24 November 2009 self-authored letter
* a copy of his DA Form 2A (Personnel Qualification Record, Part I and  Part II)
* a copy of United States Army Enlisted Records and Evaluation Center (USAEREC) Form 13 (Request for Statement of Service)
* a copy of USAEREC Form 3 (Statement of Service)
* a copy of a 10 September 1984 letter from the US Army Medical Department Activity (USA MEDDAC) to USAEREC
* a copy of message 061409Z Nov 84 with subject:  Enlisted Disability Separation
* a copy of Fort Sill MEDDAC Form Letter 26, undated
* a copy of a 1 September 1984 memorandum with subject:  Appointment of Physical Evaluation Board, 17 September 1984 change

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 AR20080010258, on 2 December 2008.

2.  The documents submitted by the applicant in paragraph 3, above, were not previously reviewed by the ABCMR and are considered new evidence warranting consideration by the Board.  Also, with the exception of his statement concerning his 19 years of service, the applicant's rebuttal points in paragraph 2, above, are new argument warranting consideration by the Board.

3.  The applicant's records were not available during his initial consideration by the ABCMR; however, records have now been located and provide the following information:

* a US Air Force Release and Discharge Order from Norton Air Force Base, CA shows the applicant was released from active duty in the US Air Force on 8 August 1969
* his US Air Force DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows active federal service from 10 August 1965 to 8 August 1969 (3 years, 11 months and 29 days)
* his USAEREC Form 3 shows his initial Regular Army (RA) enlistment was 23 October 1969 with continuous service to 26 November 1984 (15 years, 1 month and 4 days)
* his DD Form 4 (Enlistment/Reenlistment Document) shows his final RA reenlistment occurred on 4 March 1980 for a period of 5 years, to 3 March 1985
* his US Army DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 November 1984 shows active federal service in the Army totaling 15 years, 1 month and 4 days and total active federal service (US Air Force and US Army) of 19 years, 1 month, and 3 days
* he was trained in and awarded a PMOS of 13B1O (Field Artilleryman) and, as he advanced in rank, he acquired a PMOS of 13B3O (with duty MOS title of Gunnery Sergeant)
* he completed drill sergeant school and received the Drill Sergeant Badge and the Special Qualification Identifier (SQI) of "X" denoting "Drill Sergeant"

4.  Based on his Air Force and Army service records, the applicant reached 19 years of service on or about 23 October 1984 and would have become eligible for an RA 20-year retirement on or about 22 October 1985.

5.  Medical documents contained in the applicant's service records and provided by the applicant at the time of his initial review show a litany of ailments, including:

* a 14 November 1972 surgical repair of a partial tear of his left Achilles tendon
* a 4 October 1976 surgical repair of a rupture of the long head of the biceps tendon, right arm
* a 5 October 1979 x-ray report showing arthritic changes in his fingers from an old injury
* a 21 October 1982 x-ray report showing osteophytes on his lumbar spine
* an 8 February 1983 physical profile for a herniated lumbar disc
* a 21 June 1983 Medical Evaluation Record – Narrative Summary (Clinical Resume), showing he underwent a lumbar myelogram and lumbar laminectomy
* a 27 July 1984 Medical Board (MEBD) narrative summary (NARSUM) showing that status post L4-L5 discectomy in May 1983 he was diagnosed with residuals of a herniated nucleus pulposus and recommending permanent physical disability retirement

6.  The applicant underwent an MEBD on 10 September 1984 for the following conditions:

* residuals of herniated nucleus pulposus at L4-L5
* status post hernia repair in 1982, resolved
* status post repair of biceps tendon rupture in 1977, with mild residual weakness in right arm

The MEBD recommended referral to a PEB, noting the applicant did not desire to continue on active duty.  The MEBD findings and recommendation were approved on 10 September 1984.  The applicant concurred on 11 September 1984.  Both the MEBD and the PEB noted his MOS was 13B3X (denoting drill sergeant).

7.  The applicant's PEB was conducted on 18 September 1984.  It considered the three conditions raised by the MEBD.  The hernia repair and the biceps tendon repair were determined to be not ratable.  The applicant's surgically repaired 
L4-L5 herniated nucleus pulposus, with residual back pain and some neurological findings (emphasis added), was rated as mild and assigned a recommended disability rating of 10 percent under Veteran's Administration Schedule for Rating Disabilities (VASRD) code 5293, then called spinal disc condition.  The PEB found that the applicant's condition made him medically unfit to perform the duties required of a Soldier of his rank (staff sergeant) and MOS (gunnery sergeant).  The PEB recommended separation with severance pay, if otherwise qualified, while noting the applicant specifically declined submission of a Continuation of Active Duty (COAD) statement.

8.  The applicant was honorably discharged from active duty, in pay grade E-6, effective 26 November 1984, under the provisions of Army Regulation 635-40, paragraph 4-24e(3), for physical disability with severance pay.

9.  The VASRD specifies diagnostic codes for a wide spectrum of diseases and physical impairments covering all major body systems.  Each diagnostic code specifies disability ratings percentages in increments of ten, beginning with 0% and continuing to 100%, if so indicated.  The specific disability rating expressed as a percentage indicates the degree to which the rated condition has impaired the whole person.  When a PEB determines that a Soldier is unfit for continued military service by reason of a physical disability, the disabling condition is rated in accordance with the VASRD as modified in Army Regulation 635-40, Appendix B, and Department of Defense Instructions (DODI) 1332.38 and 1332.39.  In 1984, the VASRD described code 5293 as "spinal disc condition."  In the current VASRD, code 5243 identifies the same condition, but labels it "intervertebral disc syndrome."

10.  The VASRD provides that incapacitating episodes of intervertebral disc syndrome having a total duration of at least 1 week but less than 2 weeks during the past 12 months will receive a 10% rating.

11.  DODI 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) states intervertebral disc syndrome (VASRD code 5293) involves a herniation of the nucleus pulposus with impingement on the nerve root resulting in irritation and a radicular distribution of pain, and provides:

* in paragraph E2.A1.1.19.1 because 40-50 percent of the population have herniated discs which are asymptomatic, finding a herniated disk on an MRI in a Service member with back pain does not necessarily imply the herniated disk is the primary cause of the pain
* in paragraph E2.A1.1.19.2 that ratings of 40-60 percent will be predicated upon objective neurological findings supported by laboratory data, such as EMG, nerve conductive studies, flow and manometric studies for bowel and bladder involvement
* in paragraph E2.A1.1.19.4 that surgical excision of a disc without evidence of recurrent disc herniation at the same level or a different level precludes the application of the 5293 code

12.  Army Regulation 601-280 (Army Reenlistment Program), then in effect, prescribed eligibility criteria and options in the Army reenlistment program.  It established the retention control point (RCP) for an E-6 at 20 years of service.

13.  DODI 1332.38 (Physical Disability Evaluation) provides:

* in paragraph E3.P3.5 (Presumption of Fitness) that service members who are pending retirement at the time they are referred for physical disability evaluation [emphasis added] enter the Disability Evaluation System (DES) under a rebuttable presumption that they are physically fit.  The DES compensates disabilities when they cause or contribute to career termination.  Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination
* in paragraph E3.P3.5.2 (Presumptive Period) that service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after an enlisted member is within 12 months of his or her RCP or EAOS (RCP or Expiration of Active Obligated Service) [emphasis added], but will be eligible for retirement at his or her RCP/EAOS

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) 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.

	a.  Congress established the VASRD as 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.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  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.

	b.  Concerning intervertebral disc syndrome (5293) and lumbosacaral strain (5295), Appendix B states:

A 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement.  Deep tendon reflex asymmetry in the ankles, as manifested by an absent or diminished reflex, constitutes an important objective sign.  Highly significant objective signs are loss of bladder and or bowel control which are neurogenic in origin.  Neurogenic male sexual dysfunction or neurogenic muscular atrophy in any one of the four extremities, lower or upper, are also significant objective signs.  Muscular atrophy, however, may be caused by disuse rather than having a neurological etiology. Lesser objective signs are those of muscular weakness and sensory loss along one aspect of an extremity as determined by pinprick testing.  Detection of paravertebral muscle spasms on examination is significant.  With respect to muscle weakness, it can be a subjective sign especially when break-away is noted on testing.  All laboratory test results from X-rays, EMGs, nerve conduction velocities, myelograms, CT scans and MRI's are considered objective findings.  Objective signs of and findings of neurological involvement are often found in combination with objective symptoms such as pain.  The weight to be attached to each objective sign for rating purposes will vary according to the confirmation by laboratory test results along with the co-presence of other confirmed objective signs as well as the presence of subjective symptomatology consistent with the diagnosis.

Lesser ratings will begin with a 0 percent rating for chronic low back pain of unknown etiology (mechanical low back pain).  Demonstrable pain on spinal motion or discovery of back pain etiology will warrant a 10% rating unless paravertebral muscle spasms are also present, in which case a 20% rating will be awarded.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has documented active federal service of 19 years, 3 months, and 16 days and is therefore entitled to the "presumption for fitness rule."  The "presumption for fitness" rule (DODI 1332.38) only applies when the Soldier is within 1 year of his/her RCP or EAOS, provided he/she is eligible to retire on either date.  The applicant's EAOS was 3 March 1985, but he was not eligible to retire on that date.  His RCP was on or about 22 October 1985 and, although he would have been eligible to retire on that date, his RCP was outside the 1 year window commencing on his 10 September 1984 MEBD dictation date.  He was not eligible for the "presumption of fitness" rule.

2.  The applicant was counseled concerning submission of a COAD statement, but he specifically declined to do so.  Had he submitted a request for COAD, the Army would have reviewed the possibility of continuing him on active duty to reach 20 years of service for RA retirement.  For reasons unknown, the applicant chose not to pursue that option.

3.  The applicant's MEBD and PEB both show his MOS as 13B3X, with "X" denoting drill sergeant.  However, his PEB specifically states he was evaluated against his ability to perform military service as a "gunnery sergeant" not as a drill sergeant.  The PEB did not err by applying an incorrect standard against him in determining his fitness to serve.

4.  The VASRD is a living document which changes over time.  VASRD code 5293 was used to describe "spinal disc condition."  Today's VASRD uses code 5243 to identify "intervertebral disc syndrome" which is essentially the same as "spinal disc condition."  Army Regulation 635-40 still uses the 5293 code to evaluate the same condition as described by VASRD code 5243.  The proper metrics were applied to the applicant's case.

5.  The applicant alleges his unfitness was evaluated using worldwide deployability as the sole criteria.  The physical disability evaluation element of the DES determines the fitness of Service members with medical impairments to perform their military duties; and for members determined unfit for duty-related 
impairments, their entitlement to benefits.  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 or her office, grade, rank, or rating
* medically prohibited from taking the required physical fitness test
* prevented from deploying individually or as part of a unit with or without prior notification to a location outside the Continental United States
* cause of a loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment; or the member has an alternate branch or specialty

6.  Deployability is a key factor in determining fitness; however it is not the sole factor and the applicant has not shown that it was the only factor used in his fitness determination.

7.  The applicant contends he was not properly counseled during the DES process.  The counseling element of the DES is designed to afford Service members undergoing evaluation by the DES the opportunity to be advised of the significance and consequences of the determinations made and the associated rights, benefits, and entitlements.  From the record, it is clear the applicant was apprised of his opportunity to submit a COAD request.  This would suggest he was also advised that by separation with disability severance pay, he was forfeiting retire pay.  There is no evidence the applicant did not receive adequate counseling.

8.  The applicant is correct when he states he had over 19 years of creditable active Federal service at the time of his discharge.  However, as stated in paragraph 1 above, he was not retirement eligible under the provisions of DODI 1332.38 at the time of dictation of his MEBD.

9.  The applicant received disability severance pay when he was discharged in November 1984.  At that time, he readily accepted his severance pay and elected not to pursue continuation on active duty for another 11 or so months in order to qualify for retirement.

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 AR20080010258, dated 2 December 2008.




      _______ _  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.



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