IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012033 


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 discharge for physical disability without severance pay be corrected to a discharge for physical unfitness with severance pay.

2.  The applicant states when his inability to sleep due to pain started affecting his studying in advanced individual training (AIT), he was sent to the hospital.  The hospital diagnosed him with ankylosing spondylitis (AS) and referred him to a medical evaluation board (MEB).  The MEB found him medically disqualified, attributed his disability to service aggravation, and referred him to a physical evaluation board (PEB).

3.  The PEB awarded him one 20 percent and three 10 percent disability ratings, but then said they all existed prior to service (EPTS) and gave him no disability compensation.  He believes this was due to the PEB only considering the time he was in AIT, and not the entire time he was on active duty.

4.  The applicant adds that he was diagnosed with a totally fused S1 joint while on active duty, this was not noted when he enlisted, and experts in this area of medicine hold that it takes 3 to 5 years for such fusion to occur.

5.  The applicant provides a letter to the VA Regional Office appealing the denial of his request for service connection for his AS, with enclosures.


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 records show that he enlisted in the U.S. Army Reserve (USAR) for assignment to a troop program unit on 15 May 1981.

3.  The applicant was ordered to active duty for his basic combat training (BCT) during the period 15 June 1981 through 14 August 1981.

4.  He reentered active duty for his advanced individual training (AIT) on 28 June 1982.

5.  On 1 September 1982, the applicant was considered by an MEB.  In the MEB's Narrative Summary (NARSUM), done on 11 July 1982, it was said the applicant reported that his back had been stiff for approximately 5 years; he had problems with his left shoulder since 1979 and had been treated for a pinched shoulder and decreased motion of his left shoulder; and that he had experienced stiffness in both sides of his neck for 7 months and pain in the neck region starting 4 months ago.  The MEB determined the applicant to be medically disqualified due to AS, moderate, EPTS condition, service aggravated.  Treated and improved.

6.  On 15 October 1982, the applicant was considered by an informal PEB which determined that he was physically unfit due to AS, moderate, EPTS, service aggravated, treated, improved.  The informal PEB recommended a combined rating of 20 percent disabled, but deducted 10 percent for the EPTS portion of the disability.  This resulted in the informal PEB recommending discharge with severance pay, rated 10 percent disabled.  The applicant did not concur and demanded a formal hearing.


7.  On 10 November 1982, a formal PEB convened and determined that the applicant was physically unfit due to AS, manifested by limitation of motion of:

* Cervical spine, moderate (20 percent disabling, 20 percent EPTS)
* Dorsal spine (10 percent disabling, 10 percent EPTS)
* Lumbar spine (10 percent disabling, 10 percent EPTS)
* Fusion of both sacro-iliac joints (10 percent disabling, 10 percent EPTS)

8.  The formal PEB remarked that the applicant was unfit for retention because of limited motion of his spine and both sacro-iliac joints.  That condition began before his entry on active duty, had early manifestations during basic training, continued to progress during the interim period of 14 August 1981 to 28 June 1982 (the time spent as a Reservist not on active duty between his BCT and AIT), and again manifested itself in more advanced form during the first two weeks of AIT.  There was no evidence of specific or chronic service aggravation.  His condition was attributed to natural progression of the disease.  The formal PEB recommended that the applicant be separated from the military without entitlement to disability benefits.

9.  The applicant submitted a rebuttal to the formal PEB's findings and recommendation.  The formal PEB did not accept the applicant's rebuttal and forwarded the formal PEB proceedings, along with the applicant's rebuttal, to the Physical Disability Agency (PDA) for final action.

10.  On 2 December 1982, the PDA approved the formal PEB's findings.

11.  Ankylosing spondylitis, or AS, is a form of arthritis that primarily affects the spine, although other joints can become involved. It causes inflammation of the spinal joints (vertebrae) that can lead to severe, chronic pain and discomfort.  In the most advanced cases (but not in all cases), this inflammation can lead to new bone formation on the spine, causing the spine to fuse in a fixed, immobile position, sometimes creating a forward-stooped posture.  AS can also cause inflammation, pain and stiffness in other areas of the body such as the shoulders, hips, ribs, heels and small joints of the hands and feet.  The hallmark feature of ankylosing spondylitis is the involvement of the sacroiliac (SI) joints during the progression of the disease, which are the joints at the base of the spine, where the spine joins the pelvis.  Although the exact cause of AS is unknown, it is known that genetics play a key role in AS.  Most individuals who have AS also have a gene that produces a "genetic marker" - in this case, a protein - called HLA-B27.  This marker is found in over 95% of people in the caucasian population with AS (the association between ankylosing spondylitis and HLA-B27 varies greatly between ethnic and racial groups).  Scientists suspect that other genes, along with a triggering environmental factor, such as a bacterial infection, are needed to trigger AS in susceptible people.  It is thought that perhaps AS starts when the defenses of the intestines start breaking down and bacteria from the intestines pass into the bloodstream directly into the region where the sacroiliac joints are located.  The risk factors that predispose a person to ankylosing spondylitis include: 

* Testing positive for the HLA-B27 marker
* A family history of AS
* Frequent gastrointestinal infections

Unlike other forms of arthritis and rheumatic diseases, general onset of AS commonly occurs in younger people, between the ages of 17-35.  Spondylitis Association of America

12.  Army Regulation 600-8-1 (Army Casualty Program), paragraph 41-8 states, in pertinent part, that if an existing prior to service condition was aggravated by military service, the finding will be in line of duty.  If an existing prior to service condition is not aggravated by military service, the finding will be not in line of duty, existing prior to service.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that if the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  Paragraph 4-19b states that a PEB may decide that a Soldier’s physical defect was EPTS, but must then determine whether the condition was aggravated by military service.  If the PEB determines that a Soldier has an unfitting EPTS condition which was service aggravated, the PEB must determine the degree of disability that is in excess of the degree existing at the time of entrance into the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a Reservist who was attending the AIT portion of his initial active duty for training.  

2.  The applicant reported having many symptoms of AS prior to his enlistment and between his periods of active duty.

3.  The formal PEB remarked that the applicant's AS began before his entry on active duty, had early manifestations during basic training (10 months earlier), continued progressing during the interim period of 14 August 1981 to 28 June 1982 (between the applicant's basic training and AIT), and again manifested itself in more advanced form during the first two weeks of AIT.  The formal PEB found there was no evidence of specific or chronic service aggravation.  His condition was attributed to natural progression of the disease.  

4.  While the cause of AS is still unknown, it would appear to have a genetic component (the HLA-B27 marker).  Therefore, individuals who are suspected of having AS are tested for this marker and are questioned about having a family history of AS.  The only non-genetic indicator of AS is frequent gastrointestinal infections and there is no evidence that the applicant had such an infection while on active duty.

5.  In the case of a Reservist, disability compensation is only provided by the Army for conditions which are incurred or aggravated in the performance of duty.  In the applicant's case, there is no evidence or indication that the applicant's AS was caused or aggravated by the performance of duty.  It is noted that the applicant only performed two short periods of active duty and had around a 10-month break between those two periods of active duty.

6.  Given the formal PEB's findings that the applicant's AS was EPTS, along with the genetic aspects of the condition, it would appear the formal PEB properly determined the applicant's condition was EPTS and, therefore, he was properly discharged without severance pay.

7.  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)                                         AR20100012033





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ABCMR Record of Proceedings (cont)                                         AR20100012033



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