IN THE CASE OF:	  

		BOARD DATE:	    9 June 2011

		DOCKET NUMBER:  AR20100025873 


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 the issuance of a DD Form 215 (Correction to
DD Form 214 (Certificate of Release or Discharge from Active Duty)) to show he was discharged for disability with entitlement to severance pay.

2.  The applicant states he was released from active duty on mobilization orders, but he should have been discharged for medical reasons with a 10 percent (%) disability rating percentage.

3.  The applicant provides:

* Orders 8170005 (Initial Active Duty for Training (IADT)), dated 18 June 2008 
* his DD Form 214
* a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated
23 March 2010
* Orders 08-298-00005, dated 24 October 2008 (amendment to mobilization Orders 08-297-00021, dated 23 October 2008)
* U.S. Army Physical Disability Agency (USAPDA), Washington, DC, dated 7 April 2010 (discharge memorandum)
* Orders D097-33, dated 7 April 2010 (USAPDA discharge orders)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 13 May 2008.  He entered IADT on 18 June 2008 and he completed basic training (BT) at Fort Jackson, SC.  He also completed the required training and he was awarded military occupational specialty 09L (Interpreter/Translator) on 23 October 2008.

2.  On 24 October 2008, he was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom.  He was assigned to Detachment 22, Military Intelligence Readiness Command, Fort Belvoir, VA, and he reported to Fort Benning, GA, for mobilization.

3.  He was honorably released from active duty on 28 November 2009 by reason of completion of required active service.  The DD Form 214 he was issued shows in:

* Item 12a (Date Entered AD (Active Duty) This Period) the entry
"2008  10  24"
* Item 12b (Separation Date This Period) the entry "2009  11  28"
* Item 12c (Net Active Service This Period) the entry "0001  01  05"

4.  On 23 December 2009, he complained of low back pain.  He reported injuring his back during BT in July 2008 when he jumped from a truck with full gear.  He also noted a second injury to his lumbar spine in October 2008 while at the National Training Center (NTC), Fort Irwin, CA when he fell off of a military vehicle.  He was referred to a pain clinic and he was seen by neurosurgery.  His final diagnosis was that of chronic low back pain that prevented his ability to complete the Army Physical Fitness Test (APFT) or the prolonged wearing of load bearing equipment.   He was recommended for entry into the physical disability evaluation system (PDES).

5.  On 30 December 2009, a medical evaluation board (MEB) convened at Fort Meade, MD, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the medically unacceptable condition of lumbar disc disease.  The MEB recommended the applicant's referral to a PEB.  The applicant agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

6.  On 23 March 2010, an informal PEB convened at Walter Reed Army Medical Center, Washington, DC and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was 

physically unfit due to lumbar disc disease.  The PEB noted that the applicant reported back pain in July 2008 during BT and in October 2008 when he fell off of a military vehicle at the NTC.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and awarded him a 10% disability rating for code 5243.  The PEB recommended his separation with entitlement to severance pay.  On 24 March 2010, he concurred with the PEB's findings and recommendation and he waived his right to a formal hearing of his case. 

7.  On 7 April 2010, the USAPDA issued a memorandum authorizing his discharge with entitlement to severance pay and on the same date, the USAPDA also issued Orders D097-33 honorably discharging him from the Army National Guard (amended to read USAR) effective 12 May 2010 with entitlement to severance pay.

8.  On 3 May 2010, he was issued a DD Form 215 by the National Archives and Records Administration that corrected his date of entry, separation date, and net active service for his active service in 2008-2009 as follows:

* Item 12a to show "2008  01  18" in lieu of "2008  10  24"
* Item 12b to show "2009  11  27" in lieu of "2009  11  28"
* Item 12c to show "0001  09  27" in lieu of "0001  01  05"

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board may recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty for IADT on 18 June 2008 and subsequent mobilization on 24 October 2008.  He was honorably released from active duty on 27 November 2009 by reason of completion of his required active service.

2.  There is no evidence in the available records and the applicant did not provide any evidence that shows at the time of his release from active duty on 27 November 2009, he was diagnosed with a medical condition that would have warranted his entry into the PDES.  

3.  An essential element of processing a Soldier through the PDES is the Soldier's ability to perform the duties required of his grade and specialty at the time of separation.  In the applicant's case, it is acknowledged that he experienced back pain in July 2008 during BT and in October 2008 when he fell off of a military vehicle during training at NTC.  However, there is no evidence that he was unable to perform his duties at the time of his release from active duty on 27 November 2009.

4.  A PEB is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.  The Army must find that a Soldier is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before the Soldier can be medically retired or separated.

5.  It appears that his pain, which occurred or was aggravated while on active duty as evidenced by the entry on his PEB, may have gotten worse.  Accordingly, he was considered by an MEB that referred him to a PEB.  The PEB found him physically unfit and ordered his discharge on 12 May 2010 with entitlement to severance pay.  However, his MEB/PEB processing occurred after his release from active duty in November 2009.  Therefore, 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)                                         AR20100025873



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ABCMR Record of Proceedings (cont)                                         AR20100025873



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