IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120004326 


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, through his Member of Congress, correction of his records to show he was medically discharged in August 1981.

2.  The applicant states the Army records clearly reflect he was totally disabled in 1981 which is finally reflected by the Department of Veterans Affairs (VA) award. 

3.  The applicant provides:

* Letter to his Member of Congress
* 1981 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from the VA
* Letter, dated 1 July 1981, Subject: Reassignment of Hospitalized Personnel
* Message from Department of the Army requesting medical records
* DA Form 3647 (Inpatient Treatment Record Cover Sheet)
* Clinical Record – Narrative Summary (NARSUM)
* Orders 95-6 (assign to Medical Hold)
* Letter, dated 1 July 1981, Subject: Request for copy of DA Forms 2A and 2-1
* Letter, dated 1 June 1981, Subject: Application for Retention
* Endorsement of application for retention
* Orders 98-233 (reassignment to Korea)
* DA Form 3349 (Physical Profile Board Proceedings)
* 
DA Form 664 (Service member's Statement Concerning Application for Compensation from the VA)
* Operative report
* Various medical documents including consultation sheet, tissue examination, hand-written notes, and chronological record of medical care
* Dental records and charts

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 records show he enlisted in the Regular Army on 13 October 1972 and he initially held military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewmember) but later held MOS 75D (Personnel Records Specialist) and MOS 75Z (Personnel Senior Sergeant).

3.  He served through two reenlistments in a variety of stateside or overseas assignments, including service in Korea from March 1973 to December 1976 and December 1978 to June 1981, and he attained the rank/grade of staff sergeant (SSG)/E-6. 

4.  His records contain a DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty).  This form shows his physical profile on          26 August 1981 was such that he was considered physically qualified for separation or for reenlistment without reexamination provided he reenlisted within 6 months and stated that he had not acquired new diseases or injuries during the interval period when not a member of the military service.  His physical profile on date of separation was "1-1-1-1-1-1- A (the A stands for no physical limitations).

5.  He was honorably discharged from active duty on 26 August 1981 under the provisions of chapter 2 of Army Regulation 635-200 (Personnel Separations) by reason of completion of his required service (Expiration of Term of Service).  His DD Form 214 shows he completed 8 years, 10 months, and 14 days of total creditable active service.

6.  His service medical records are not available for review with this case.  However, he submitted several medical documents related to a back injury.  He also submitted:

	a.  Orders Number 98-233, issued by the U.S. Military Personnel Center, Korea, dated 8 April 1981 ordering his separation from the Army effective 29 April 1981.  

	b.  Application for retention, dated 30 June 1981, from the applicant to Letterman Army Medical Center, San Francisco, CA, requesting retention on active duty. 

	c.  An endorsement, dated 2 July 1981, by a Physical Evaluation Board Liaison Officer recommending approval.  The author stated the applicant was admitted to this medical treatment facility on 13 June 1981 with a diagnosis of right nerve root compression in the back.  He underwent surgery for this condition and his anticipated date of release from active duty was 1 August 1981.

	d.  Orders 95-6, issued by Letterman Army Medical Center, San Francisco, CA, on 30 June 1981, ordering his assignment to the Medical Holding Company, Letterman Army Medical Center, effective 30 June 1981 

	e.  NARSUM, dated 13 June 1981, which shows the applicant had an episode of low back pain 2 years earlier.  He did well until 3 months ago when he had an episode of low back pain with right leg pain.  His back pain was largely resolved but he still had persistent paresthesias and weakness of the right leg with intermittent right leg pain.  He underwent a physical examination which showed an overall healthy individual with a final diagnosis of S1 radiculopathy with extradural defects at L4-L5, S1 on myelogram.  He had undergone a lumbar myelogram on 29 April 1981.  (Radiculopathy refers to a set of conditions in which one or more nerves are affected and do not work properly; the emphasis is on the nerve root).

	f.  A DA Form 3647, dated 13 June 1981 which shows he had a diagnosis of S1 radiculopathy with extradural defects at L4-L5, S1.  

	g.  A DA Form 3349, dated 25 August 1981, of a permanent nature, that shows he had the physical defect of low back pain and right leg weakness due to disc disease.

	h.  A VA Form 664, dated 26 August 1981, wherein he indicated that he had filed a VA claim.

	i.  An operative diagnosis, dated 25 June 1981, which shows his operative diagnosis was that of herniated intervertebral disc, L5, S1, right forminal encroachment.   He underwent a partial hemilaminectomy, L4-5, and L5, S1, right with diskectomy L5, S1, right foraminotomy L4-5, right.  The report shows when the diskectomy had been judged adequate, the epidural space was carefully explored for any extruded free fragments.  None were found and no tears were found in the posterior longitudinal ligament.  There were no intra-operative complications. 

	j.  Multiple chronological records of medical care, consult sheets, tissue examination, and other documents related to follow-up and recommendations/therapy exercises.  He was instructed in knee exercises and/or a strengthening program, including riding a bicycle. 

	k.  Dental records. 

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (PDES) 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 medical evaluation boards, 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 prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  

8.  Paragraph 3-2b states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a member is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his/her rank or grade until the member is scheduled for separation/retirement, creates a presumption that the Soldier is fit. 

9.  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 rating of at least 30 percent (%).  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 rating at less than 30%.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, 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's service medical records are not available for review with this case.  However, the documents he provided show he was stationed in Korea and was scheduled for separation on 29 April 1981.  It appears he began experiencing an episode of low back pain.  He was transferred to Letterman Medical Center in San Francisco with a diagnosis of herniated intervertebral disc. He requested and was authorized retention on active duty for the purpose of completing his medical treatment.  

2.  He underwent an operation on 25 June 1981.  The operative report shows when the diskectomy had been judged adequate, the epidural space was carefully explored for any extruded free fragments.  None were found and no tears were found in the posterior longitudinal ligament.  There were no intra-operative complications.  Additionally, he later followed-up and was instructed in knee exercises and/or a strengthening program, including riding a bicycle. 

3.  It appears that once his treatment concluded, he chose not to reenlist.  Accordingly, he was discharged on 26 August 1981.  His records contain a DA Form 1811 which shows his physical profile on the date of discharge was such that he was considered physically qualified for separation or for reenlistment without reexamination provided he reenlisted within 6 months and stated that he had not acquired new diseases or injuries during the interval period when not a member of the military service.  His physical profile on date of separation was all "1" and he had no physical limitations.

4.  Although he had low back pain and underwent surgery for it, there is no indication that such pain rendered him physically unfit to perform the duties required of his grade and military specialty.  In other words, even if he suffered an injury or an illness, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

5.  Furthermore, a diagnosis by the VA - nearly 30 years after the applicant’s separation - does not establish an error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may diagnose a member and award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability.  A disability rating, if and when assigned by the Army, is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120004326



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ABCMR Record of Proceedings (cont)                                         AR20120004326



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