BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009407 


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 physical disability retirement from active duty.

2.  The applicant states he should have been retired from active duty for disability rather than placed in the Retired Reserve.

3.  The applicant provides two separate submissions.

	a.  Submitted with one DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) was the following:

		(1)  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 August 1992;

		(2)  U.S. Army Human Resources Command (HRC) St. Louis, Orders      M-07-403074, dated 30 July 2004;

		(3)  HRC St. Louis, memorandum, dated 25 May 2005;

		(4)  DD Form 214, dated 12 September 2005;

		(5)  DA Form 4836 (Oath of Extension or Reenlistment), dated 8 January 2007;

		(6)  Retired Reserve Certificate, dated 7 September 2007; and

		(7)  87th Division (Training Support) Orders 07-267-00003, dated 24 September 2007.

	b.  Submitted with the other DD Form 149 was the following:

		(1)  medical holdover counseling statement, dated 30 November 2004;

		(2)  Medical Evaluation Board (MEB) Summary, dated 31 March 2005;

		(3)  DA Form 3947 (MEB Proceedings), dated 6 April 2005;

		(4)  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 28 April 2005;

		(5)  DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 June 2005;

		(6)  DA Form 3349 (Physical Profile), dated 3 October 2006;

		(7)  Social Security Administration disability rating decision, dated 2 April 2007; and

		(8)  DD Form 2808 (Report of Medical Examination) with associated magnetic resonance imaging reports, undated.

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, a career noncommissioned officer (NCO), served on active duty in the Regular Army from 1976 to 1992 as a cook and an administrative specialist.  He was discharged as a staff sergeant/pay grade E-6.  He completed 16 1/2 years of honorable service and was separated for the convenience of the government under the Fiscal Year 1992 Enlisted Voluntary Early Transition Program and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  HRC St. Louis Orders M-07-403074 ordered him to report on 14 September 2004 for active duty for not more than 25 days of processing for mobilization in military occupational specialty 92G (Food Service NCO).  If he was determined to not meet deployment medical standards because of either a permanent or a temporary medical condition, he was to be returned to his former unit.

4.  The applicant apparently met deployment medical standards, but soon thereafter developed back problems.  The DA Form 2173 shows an examination date of 29 October 2004 and the MEB summary mentions 2 November 2004     x-rays.

5.  The MEB summary states that after extensive evaluation and testing, it was determined that there was "no evidence of fibromyalgia or inflammatory arthropathy.  Current disabilities are from mechanical low back pain and cervical brachial pain syndrome which are soft tissue abnormalities that are currently stable and preclude running, sit-up, push-ups, carrying Kevlar, rucksack, etc."  The MEB found the applicant did not meet retention standards due to the two above conditions and referred his case to a PEB.

6.  The DA Form 2173 shows that the applicant had been examined at Fort Dix, New Jersey, on 29 October 2004 where he reported that his low back pain had started in 1976 while he was in basic training.  He stated that the current physical training (PT) was aggravating his low back pain.  His low back pain was determined to have been aggravated in the line of duty.

7.  A 28 April 2005 PEB determined that the applicant's cervical brachial pain syndrome was first noted in 1992.  His conditions were rated under the VASRD (Veterans Affairs Schedule of Rating Disabilities) as follows:

   a.  Code 5237 and the applicable criteria is to be used in situations involving both cervical and thoracolumbar regions of the spine although each region is evaluated separately.
   
    b.  The combined range of motion that the applicant could move his neck was 200 degrees.  The VASRD provides that a combined cervical range of motion between 170 and 335 degrees is to be rated at 10-percent.  
   
   c.  His chronic low back pain [thoracolumbar region] was also to be rated based on range of motion measurements.  The combined range of motion was 257 degrees, which combined with his cervical range of motion was not at the separately ratable level.  
   
   d.  The applicant's overall disability was rated at 10-percent.  Physical training and the wearing of combat gear were precluded.  Separation with disability severance pay was recommended.

8.  An HRC-St. Louis memorandum, dated 25 May 2005, informed the applicant that he was eligible for retired pay at age 60.

9.  On 31 May 2005, the applicant concurred with the PEB findings and recommendation, but requested continuation in the USAR.

10.  On 12 September 2005, the applicant was released from active duty and transferred to the USAR due to the completion of required service.

11.  A medical examination, dated 21 April 2006, continued the "P3" profile and no PT and no combat gear restrictions.

12.  On 11 January 2007, the applicant was voluntarily transferred from the USAR Control Group (Reinforcement) to a troop program unit.

13.  An October 2007 physical profile evaluation noted shortness of breath, dizziness, and chest pain in addition to mechanical low back pain and chronic neck pain.  The applicant's physical profile was determined to be "333121."

14.  On 7 October 2007, he was voluntarily transferred to the Retired Reserve.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

16.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he should have been retired for disability from active duty rather than placed in the Retired Reserve.

2.  The medical evidence supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.
3.  Based upon his range of motion measurements at the time, he was not rated or ratable at the 30-percent level that is required for physical disability retirement.  Furthermore, the applicant not only concurred with the PEB findings he requested continuation in the USAR.

4.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

5.  There is no documentation to support the applicant's contention and no rationale to support the conclusion that disability retirement was warranted.

6.  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)                                         AR20100009407



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ABCMR Record of Proceedings (cont)                                         AR20100009407



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