IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007338 


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 his military records be changed to show he was discharged for a reason other than "failure to meet procurement medical fitness standards."  He also requests, in effect, removal of his permanent profile.

2.  The applicant states he was injured when a 5 foot 5 inches, 200 pound fellow recruit landed on him during his first week of basic combat training (BCT).  When his back began to ache a week later he saw a family practice doctor who prescribed pain medication and he was sent back to his platoon.  He continued to have slight pain and he returned to the family practice doctor for a follow-up where he was told he had scoliosis, Cobb's angle T7 on T8 9.5, L1 Cobb's angle 6, and Spina Bifida that existed prior to service.  The doctor told him he was not medically fit to stay in the Army.  He states the doctor had him sign some medical documents and to show his drill instructor his P-3 profile.  When he returned home he was seen by Department of Veterans Affairs (VA) representative who told him there was a 6-month waiting period to be seen by a doctor.

3.  The applicant provides copies of:

* his Entrance Physical Standards Board (EPSBD) Proceedings
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a statement from a physician's assistant
* two reports of scoliosis screening from Desert Imaging, El Paso, TX
* 
a DD Form 2807-2 (Medical Prescreen) from MEPS (Military Entrance Processing Station), El Paso
* his evaluation from the Spine & Injury Care Clinic, El Paso

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's military personnel records show he enlisted in the Regular Army on 7 September 2004 for a period of 4 years and 21 weeks.

3.  On 28 October 2004, an EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition existed prior to service.  According to the EPSBD the applicant:

* was in his 6th week of BCT when he was identified on 26 October 2004 as having a condition that existed prior to service
* complained of low back pain since week 2 of training and persisted with training

4.  The EPSBD's objective finding was scoliosis survey Cobb's Angle T7 on T8 9.5, L1 Cobb's 6, and spina bifida 1.5.  The applicant was diagnosed with chronic low back pain.  The EPSBD recommended that the applicant be separated.

5.  The EPSBD found the applicant did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph 2-33j.  The EPSBD determined this condition existed prior to service and was not aggravated by military service.  The EPSBD further found the applicant did meet retention standards under the provisions of Army Regulation 40-501, chapter 3, and recommended his 

separation from military service under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations, paragraph 5-11.

6.  The EPSBD also stated the applicant had a permanent L-3 Profile:  No running, jumping or marching activities.  No heavy lifting.

7.  There is no record available showing the applicant was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he may consult a civilian attorney at his own expense.  He would have been advised that he could request to be discharged from the Army without delay or he could request retention on active duty.  The applicant's concurrence/non-concurrence of the EPSBD proceedings and his decision to be retained in the service or be discharged was also not available for review.

8.  On 13 January 2005, the applicant was discharged by reason of failure to meet procurement medical fitness standards with an uncharacterized characterization of service.  He had completed 4 months and 7 days of total active service.

9.  An undated letter from a physician's assistant (PA) at the Affordable Family Medical Clinic states the PA saw the applicant on 21 April 2005.  The PA stated the applicant's x-rays revealed no lumbar scoliosis and only minimal dextroscoliosis.  He stated the applicant denies any back pain.  The PA stated it was his professional opinion that these findings would not interfere with the applicant's enlistment in the U.S. military service.

10.  The applicant submitted two scoliosis screenings from the Desert Imaging, both dated 5 May 2008.  One screening shows an L5 spina bifida occulta, benign finding with an impression of an essentially negative study with no lumbar scoliosis.  The second screening shows an L5 spina bifida occulta, benign finding with an impression of minimal dextroscoliosis of mid-thoracic spine, Cobb Angle 3.5 degrees.  Otherwise negative study.

11.  A DD Form 2807-2 from the MEPS, El Paso, dated 18 July 2005, stated the doctor had reviewed a 14 February 2005 prescreen for the U.S. Navy, a 10 July 2006 prescreen for the Army National Guard (ARNG), and the applicant's
DD Form 214.  The examiner stated the applicant may not physical through the El Paso MEPS medical section without prior written request received from the ARNG medical waiver authority in advance.  The examiner stated that due to the applicant's medical history of skeletal spinal abnormality and chronic recurring low back pain, the command would not recommend a waiver.

12.  On 30 November 2006, the applicant underwent an evaluation to determine general performance levels through the administration of a functional capacity evaluation.  The examiner diagnosed the applicant with sprain/strain of the lower back and sprain/strain of the thoracic.  It was the opinion of the evaluator that the applicant was capable of performing the duties and tasks required of a very heavy physical demand level such as enlistment in the Army.  He recommended that the applicant was fit to return to duty.

13.  Information obtained from the internet defines Cobb's angle as a measurement used for evaluation of curves in scoliosis on an AP radiograph projection of the spine.  As a general rule a Cobb's angle of 10 is regarded as a minimum angulation to define scoliosis.  If the Cobb's angle for the scoliosis is
15 degrees or less, it's likely that all that will be needed is regular check-ups to see if the curve is progressing. If it is between 20 and 40 degrees, a back brace may be needed.  If it is over 40, a doctor will likely recommend surgery.

14.  Army Regulation 40-501, in pertinent part, prescribes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction into military service.  Paragraph 2-33j of this regulation states that one of the causes for rejection for appointment, enlistment, and induction is weak or painful back requiring external support or recurrent sprains or strains requiring limitation of physical activity or frequent treatment.

15.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards, when accepted for enlistment, or who became medically disqualified under these standards prior to entrance on active duty or active duty training or initial entry training will be separated.  Such conditions must be discovered during the first 
6 months of active duty and will result in an EPSBD.  A Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty.

16.  The EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 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 that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.
17.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his reason for separation should be changed and his permanent profile should be removed.

2.  An EPSBD established that the applicant's chronic low back pain was identified by appropriate medical authority within 6 months of the applicant’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 that time, and the medical condition did not disqualify the Soldier from retention in the service.  

3.  The applicant was not found to have not met procurement standards due to scoliosis or spina bifida.  He was found to have not met procurement standards due to chronic pain causing limitation of physical activity or frequent treatment.  He was determined to have met retention standards.  Therefore, he could have elected to remain in the Army at the time.

4.  In the absence of evidence to the contrary and based on the applicant's discharge, it must be presumed he was advised he could request retention or be discharged and he elected discharge.

5.  A permanent profile invoked while the applicant was on active duty would have terminated upon his discharge.  However, the reasons he was placed on permanent profile would be reevaluated upon his reentry to military service.

6.  The medical evidence submitted by the applicant was reviewed.  However, all of the evaluations were conducted after the applicant was discharged.  Post- service evaluations in and of themselves do not make the Army evaluation of his medical condition at the time of his discharge incorrect.  In addition, although the examiner recommends the applicant is fit for duty, there is no evidence to show the examiner has the knowledge of military procurements standards that must be met.

7.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100007338



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ABCMR Record of Proceedings (cont)                                         AR20100007338



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