IN THE CASE OF:	  

		BOARD DATE:	 28 October 2010 

		DOCKET NUMBER:  AR20100013154 


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 his record to show he was medically discharged.

2.  The applicant states, in effect, his Medical Evaluation Board (MEB) summary document clearly shows the reason for his discharge.  He contends the MEB summary shows his diagnosis (though pre-existing) was service aggravated in the line of duty.  He also states this information will affect his Department of Veterans Affairs claim as well as concurrent receipt.

3.  He provides a copy of his:

* Medical Board Summary
* DD Form 214 (Report of Separation from Active Duty)

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 he enlisted in the Regular Army on 20 April 1976 for a period of 3 years.

3.  On 17 October 1976, an MEB convened at Dewitt Army Hospital located at Fort Belvoir, VA.  The MEB summary stated the applicant sustained a fracture of his lumbar spine in an automobile accident in 1973 prior to entry into the service. Following the accident he underwent surgical repairs of his bilateral inguinal hernias.  Nearing the end of basic training he experienced an episode of increasing back pain with moderate spasm and limitation of range of motion.  He did fairly well until 12 July 1976, when he fell, landing on his buttocks, with a marked increase in pain at the time.  The lower back pain was increased with activity and he also had diffuse aching of both legs and feet.  At the time he was unable to perform his required duties due to persistence of his back pain.  The MEB summary stated he was diagnosed with a compression fracture of his L1 vertebra with post-traumatic arthritis which existed prior to service (EPTS) and was moderately disabling, and that it was service-aggravated in the line of duty.  The MEB found him medically unfit for service in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph
3-36(c)1.  The board recommended the applicant's referral to a Physical Evaluation Board (PEB) for final disposition.  The MEB was approved on
21 October 1976.  On 28 October 1976, he acknowledged notification of the approved findings and recommendations of the MEB.

4.  On 1 November 1976, an informal PEB convened at Walter Reed army Medical Center located in Washington, DC and considered his diagnosis of a compression fracture of L1 vertebra due to an auto accident in 1973; with back pain and x-ray evidence of 50 percent compression fracture of L1 with mild subluxation.  The PEB found his condition precluded him from reasonable fulfillment of the purpose of his employment in the Army because of impairment that existed prior to service.  The PEB found the applicant was physically unfit and recommended his separation from the service without entitlement to disability benefits.

5.  On 4 November 1976, the applicant concurred with the findings and recommendations of the PEB and waived his rights to a formal hearing.  The PEB was subsequently approved on 10 November 1976.


6.  Accordingly, on 24 November 1976, he was honorably discharged after serving 7 months and 9 days of total active service.

7.  Item 9c (Authority and Reason) of his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with an assigned Separation Program Designator (SPD) code JFM.

8.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay.  When considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JFM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, chapter 5, by reason of "physical disability - EPTS - PEB." 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 20 April 1976.  Prior to enlisting in the Army he sustained a fracture of his lumbar spine in an automobile accident in 1973.  Nearing the end of basic training, he experienced an episode of increasing back pain with moderate spasm and limitation of range of motion.  After falling and landing on his buttocks on 12 July 1976, he noticed increased pain and was subsequently unable to perform his duties due to persistence of his back pain.

2.  On 17 October 1976, an MEB found him medically unfit for service in accordance with Army Regulation 40-501, chapter 3, paragraph 3-36(c)1 and recommended his referral to a PEB.  The MEB had indicated that his injury was service-aggravated in the line of duty.


3.  On 1 November 1976, the PEB found his condition precluded him from reasonable fulfillment of his Army employment.  The board recommended his separation from the service without entitlement to disability benefits.  If the PEB agreed that his injury was service aggravated, and there is no evidence of record to show the PEB commented on this issue, it appears the PEB did not find that the degree of service aggravation over and above the degree existing at the time of entrance into the active service, less natural progression, warranted a disability rating.  He concurred with the findings and recommendations of the PEB, and on 24 November 1976 he was discharged accordingly.

4.  Evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations in effect at the time.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a correction of his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the DVA.

6.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100013154



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ABCMR Record of Proceedings (cont)                                         AR20100013154



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