BOARD DATE:	23 September 2010  

		DOCKET NUMBER:  AR20090021033 


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 correction of the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged due to "Disability." 

2.  The applicant states, in effect, his discharge was improper because prior to his discharge a physician requested that he go before a medical evaluation board (MEB).  Additionally, he is currently receiving service-connected disability compensation for his pre-discharge condition.  He is also currently being seen at the Department of Veterans Affairs (VA) Spinal Cord Treatment Center for degenerative disc disease and spiral wedging. 

3.  The applicant provides a copy of his DD Form 214, VA Rating Decision, and a Standard Form (SF) 600 (Chronological Record of Medical Care).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Regular Army for a period of 3 years in the rank/grade of specialist/E-4 on 15 August 2007 and was subsequently assigned to Fort Leonard Wood, MO, for completion of basic combat and/or advanced individual training.  He did not complete training and he was not awarded a military occupational specialty (MOS).



2.  A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 13 February 2008, shows the applicant was diagnosed with Kyphosis (abnormal curvature of the spine causing pain).  The attending physician annotated the DA Form 4707 to show:

	a.  Shortly after the applicant's arrival at Fort Leonard Wood he complained of back pain.  He subsequently underwent a physical examination where he noted a previous history of back pain requiring a special bed at home to allow him to sleep.  He initially had mild discomfort in basic training but with gradual use of individual body armor, ruck march, and physical training, his condition worsened and he ultimately reported to the troop clinic in week 6.  He underwent physical therapy for 2 weeks but his condition did not improve.  

	b.  The applicant was found unfit for appointment or enlistment in accordance with medical fitness standards in effect and, in the opinion of the attending physician, his condition existed prior to service (EPTS).  The recommendation was that the applicant be separated.  The applicant's condition was not likely to improve, it was unlikely that he would be able to complete training, or undergo the rigors of military duty to include deployment, the use of ruck sacks, and or individual body armor.

	c.  On 27 February 2008, the medical approving authority approved the findings of the EPSBD and recommended that the applicant be separated from the service under the provisions of paragraph 5-11 of Army Regulation 635-200 (Personnel Separations). 

3.  Item 21 (Action by Service Member) of the DA Form 4707 shows that on 
29 February 2008 the applicant concurred with the EPSBD proceedings and requested to be discharged from the Army without delay.  The applicant also acknowledged he understood that legal advice of an attorney employed by the Army was available to him and that he also could consult with a civilian counsel at his own expense.

4.  On 29 February 2008, the applicant's unit commander recommended that the applicant be discharged.

5.  On 3 March 2008, the separation authority approved the applicant's separation from the Army.  Accordingly, the applicant was discharged on 10 March 2008.  The DD Form 214 he was issued shows he was honorably 



discharged under the provisions of paragraph 5-11 of Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards.  He completed a total of 6 months and 26 days of creditable service and he was not transferred to the U.S. Army Reserve nor did he have a Reserve Obligation Termination Date.

6.  The applicant submitted the following documents:

	a.  An SF 600, dated 12 February 2008, wherein the attending physician evaluated the applicant at the Orthopedic Clinic Fort Leonard Wood, due to severe mid and low back pain and determined there was the impression of structural spinal changes that were not consistent with continuing military service and recommended an MEB.

	b.  A copy of his VA Rating Decision, dated 20 April 2009, wherein the VA awarded him service-connected disability compensation for kyphosis. 

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable (or uncharacterized for entry level status personnel (less than 180 days)).

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U. S. Code.  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.  Soldiers are referred into the PDES system when it is determined that they did not meet physical standards for enlistment, appointment and/or induction in accordance with chapter 2 of Army Regulation 40-501, or they no longer meet medical retention standards in accordance with chapter 3, Army Regulation 40-501.

9.  Paragraph 3-3 of Army Regulation 635-40 states, according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples of these conditions are as follows: scars; fibrosis of the lungs; atrophy following disease of the central or peripheral nervous system; healed fractures; absent, displaced, or resected organs; supernumerary parts, congenital malformations and hereditary conditions; and similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a rating or a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was found medically unqualified for service shortly after he reported for training.  The EPSBD proceedings clearly established that he suffered from a disqualifying EPTS medical condition (Kyphosis).  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The evidence of record confirms the applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph chapter 5-11 of Army Regulation 635-200 due to an EPTS condition (kyphosis).  Absent this medical condition, there was no fundamental reason to process the applicant for separation.  The underlying reason for his separation was his EPTS condition that caused him to fail medical procurement standards.  The only valid narrative reason for separation permitted under this paragraph is "Failed Medical/Physical Procurement Standard."   Therefore, the applicant received the proper narrative reason for separation.
3.  The applicant now believes his DD Form 214 should be changed because the VA granted him a service-connected disability rating.  However, an award of a rating by another agency does not establish error in the reason for separation by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA, at its own discretion and within its own policies, may award a rating because an individual has a medical condition related to service (service-connected) that affects civilian employability. 

4.  The PDES is designed to determine whether a Soldier is unfit because of physical disability that was incurred while a member is entitled to basic pay, to reasonably perform the duties of his or her office, grade, rank, or rating.  As the applicant's injury was determined to be EPTS, it occurred while he was not entitled to basic pay.  Therefore, he was ineligible for entry into the PDES.  

5.  In view of the foregoing, the applicant is not entitled to 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)                                         AR20090021033



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ABCMR Record of Proceedings (cont)                                         AR20090021033



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