BOARD DATE:	  16 November 10 

		DOCKET NUMBER:  AR20100013046 


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 that his discharge with severance pay be changed to a full 20-year retirement with benefits and full back pay.

2.  The applicant states, in effect, that he was offered the possibility of completing 20 years of service by teaching at the Field Artillery School at Fort Sill, OK.  He was a staff sergeant/E-6 within 36 months of retirement and he was wrongfully discharged.  He states his injuries have worsened since his separation and he now wants a review of his separation.  The applicant provides a chronological list of his injuries:

	a.  June 1976 - a driver's hatch (weighing 250 pounds) slammed shut on his head;

	b.  July 1983 - he injured his neck and back while moving equipment.  He was unable to work for 4 days while he attended physical therapy;

	c.  February 1985 - reinjured his back and neck moving a generator across the ice;

	d.  July 1987 - he was sent to Walter Reed Army Medical Center for a physical review board where he was found fit for duty;

	e.  February 1991 - he reinjured his neck and back;

	f.  May 1991 - his doctor did an overall evaluation on him and said his neck had healed up and he should be on the road to recovery;

	g.  October 1991 - the Field Artillery School at Fort Sill asked his unit if they would release him to work at the school until he retired;

	h.  October 1991 - he injured both of his shoulders while helping lift a 300 pound cable, he dislocated his right shoulder and damaged his left shoulder, his appointment for physical therapy was cancelled by his commander, he never got the proper physical therapy for his shoulder and it still bothers him today;

	i.  February 1992 - the Field Artillery School again asked his unit if they would release him to work at the school as an instructor until he could retire at 20 years, but his commander refused to release him to the school;

	j.  February 1992 - his commander requested a new physical review board; and

	k.  July 1992 - he was told by his commander to take what the physical review board gave him or he would make sure he found a way to kick him out of the Army.

3.  The applicant provides three unsigned statements from L____ R. K____.

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 9 August 1975.  He served continuously until the date of his discharge.

3.  On 25 February 1992, a Military Occupational Specialty (MOS) Medical Retention Board (MMRB) evaluated the applicant's abilities to perform the physical requirements of his MOS 13C (TAC Fire Operations Specialist).  The MMRB determined the limitations imposed by his permanent physical profile were so prohibitive that they precluded reclassification into any MOS for which the Army had a requirement.  The MMRB directed the applicant be scheduled for a medical evaluation board (MEB).

4.  The narrative summary (NARSUM) for his MEB states his chief complaint was neck and upper back pain.  The NARSUM found full range of motion for both upper and lower extremities.  According to the NARSUM, the applicant stated he was unable to perform the duties of his MOS which require being out in the field and wearing a Kevlar helmet, as well as riding in field vehicles over rough terrain which increases the upper back and lower neck pain.  The NARSUM provided the diagnosis of Scheuermann's disease [deformity of the thoracic spine] and indicated that it was in the line of duty.  Duty restrictions were noted as no riding in track-type vehicles and wearing a Kevlar helmet, and pushups to tolerance.

5.  On 26 May 1992, the MEB found the applicant did not meet retention standards for Scheuermann's disease and referred him to a physical evaluation board (PEB).  The applicant indicated that he did not desire to continue on active duty and that he agreed with the MEB's findings and recommendation.

6.  On 1 July 1992, an informal PEB found the applicant unfit for duty due to Scheuermann's disease manifested by pain.  The PEB determined the applicant experienced pain in his upper and lower back to the point that he was unable to perform the duties required of his grade and MOS.  The PEB found the applicant's medical and physical impairment prevented the reasonable performance of duties required by his grade and MOS.

7.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.  The applicant concurred with the finding and recommendation of the PEB and waived his right to a formal hearing in his case.

8.  On 3 August 1992, the applicant was discharged due to disability with severance pay.  He had completed a total of 16 years, 11 months, and 29 days of active service that was characterized as honorable.

9.  In the unsigned statements from L____ R. K____, he stated he was present when the applicant was told by the Field Artillery School in February and October 1991 that they had asked his unit to release him and his unit said no.  He also remembers the applicant going to the field with a bad injury due to a physical therapy appointment being canceled by his commander.

10.  Scheuermann's disease, or Scheuermann's kyphosis, is a condition in which the normal round back in the upper spine (called a kyphosis) is increased.  Most people with Scheuermann's disease will have an increased round back (e.g., a hunch back or hump back), but no pain.

11.  Title 10, U.S. Code, section 1176 (Enlisted members:  retention after completion of 18 or more, but less than 20, years of service), states that a regular enlisted member who is selected to be involuntarily separated, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within 2 years of qualifying for retirement under section 3914 or 8914 of this title shall be retained on active duty until the member is qualified for retirement unless the member is sooner retired or discharged under any other provision of law.

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

13.  Title 38, U.S. Code, permits the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive a full 20-year retirement with benefits and full back pay.  He contends he was offered a job at the Field Artillery School to teach until he completed his 20 years of service.  He contends he was a staff sergeant within 36 months of his retirement and was wrongfully discharged.

2.  The applicant had 16 years, 11 months, and 29 days of active service when he was discharged under the provisions of Title 10, U.S. Code, section 1203, for physical disability with a rating of less than 30 percent.  Therefore, for these two reasons, the provisions of Title 10, U.S. Code, section 1176, do not apply in his case.

3.  The applicant agreed with the MEB's findings and recommendation and indicated that he did not desire to remain on active duty.  The applicant has contended that he had twice received an offer to go teach at the Field Artillery School until his retirement.  However, he had indicated in his MEB that he did not desire to remain on active duty.
4.  The applicant agreed with the findings and recommendation of the informal PEB and he waived his right to a formal PEB.

5.  In view of the above, there is no basis on which to change the applicant's records to show entitlement to a 20-year retirement or any benefits and back pay.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

7.  The applicant contends that his injuries have worsened since his separation.  Disabilities which worsen after a Soldier is separated are treated by and compensated for by the VA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that agency.

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)                                         AR20100013046



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ABCMR Record of Proceedings (cont)                                         AR20100013046



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