BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120021797 


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 records to show he was retired due to physical disability.

2.  The applicant states he was medically discharged with a 10% disability rating due to a lower back injury.

   a.  He states he also injured his shoulder while on active duty and asked the Physical Evaluation Board (PEB) Liaison Officer (PEBLO) to add the medical condition to his Medical Evaluation Board (MEB), but it was not.

   b.  After seeing a doctor at Schofield Barracks, Hawaii, he was sent to Tripler Army Medical Center (TAMC) for Magnetic Resonance Imaging (MRI) of his shoulder.  The results revealed a Bankart tear 180 degrees around his shoulder.

   c.  He adds that the injury would have been rated as unfitting, with an additional 20% disability rating, qualifying him for medical retirement.

3.  The applicant provides copies of his:

* MEB proceedings
* two civilian medical records


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 21 February 2006 for a period of 5 years.  He was awarded military occupational specialty 31B (Military Police).

2.  He reenlisted in the RA on 8 June 2009.

3.  A DA Form 3947 (MEB Proceedings), dated 24 August 2011, shows the applicant's "upper back paravertebral muscle spasm and strain involving the rhomboid (shoulder) muscles bilaterally and Lumbar Intervertebral Disc Syndrome with degenerative arthritic changes and that the most likely involved peripheral nerve is the sciatic nerve, which affects the right side of the body and a mild thoracic dextroscoliosis (of no clinical relevance)," was found to have been incurred while the applicant was entitled to base pay.

   a.  The MEB found, in addition to his medically disqualifying back and shoulder problems, the following conditions met retention standards:

* bilateral tinnitus
* hearing loss
* aphtous stomatitis (canker sores)
* prostatitis (inflamed prostate)
* left knee strain
* tight bilateral hips
* two superficial scars, face and scalp
* two superficial scars, left knee
* mild recurrent heartburn, no gastro-esophageal reflux disease (GERD) or hiatal hernia
* obesity

   b.  The MEB recommended the applicant be referred to a PEB.

   c.  The applicant concurred with the MEB's findings and recommendations.  He acknowledged that the DA Form 3947 included all of his current medical conditions and whether or not they met medical retention standards.  He also acknowledged that he understood the PEB would consider and review only those conditions listed on the DA Form 3947 and he placed his signature on the document.

4.  A DA Form 199 (PEB Proceedings) shows, on 14 October 2011, an informal PEB found the applicant physically unfit for continuation on active duty due to upper back strain with Lumbar Intervertebral Disc Syndrome.
   a.  The other conditions listed as MEB diagnoses (with the exception of obesity) were determined to meet retention standards and were not unfitting.  The condition of obesity was found to be not compensable, as it was not deemed to constitute a physical disability although it might be administratively unfitting.

   b.  The PEB recommended separation under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5243 and a 10% disability rating with severance pay.

   c.  The applicant concurred with the PEB's findings and waived a formal hearing.  He also declined reconsideration of his Department of Veterans Affairs ratings.

   d.  The PEBLO affirmed with her signature that she had informed the applicant of the findings and recommendations of the PEB, explained to him the results of the findings and recommendations, and his legal rights.  She also confirmed that the applicant made the elections shown on the PEB proceedings.

   e.  On 28 November 2011, the PEB was approved for the Secretary of the Army.

5.  U.S. Army Garrison - Hawaii, Schofield Barracks, HI, Orders 342-0017, dated
7 December 2011, assigned the applicant to the transition point for discharge on 26 February 2012 with a percentage of disability of 10%.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 26 February 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to disability with entitlement to severance pay.  

7.  In addition to a copy of his MEB proceedings, the applicant provides copies of the following documents:

   a.  A Cincinnati Sports Medicine and Orthopaedic Center chart, dated
14 February 2012, that shows the applicant reported he fell down some stairs and injured his left shoulder on 15 December 2011.  He also reported that he was on active duty at the time and evaluated in Hawaii.  An MRI scan was done, he was told he had a posterior Bankart lesion (torn shoulder muscle), and instructed to seek orthopedic care upon discharge from the Army.

    	(1)  The physician noted the MRI scan was not available for review.  A report from TAMC was available, but the physician was not able to determine exactly what the radiologist was describing.
    	(2)  Physical examination of the applicant's left shoulder by the physician did not elicit discomfort and revealed no apprehension.  He also noted the applicant had a negative O'Brien's sign and a negative Speed sign, a negative Yergson test, and normal contour.

    	(3)  The physician found, "the patient is currently effectively asymptomatic from this."

   b.  Bethesda TRIHEALTH Good Samaritan, Cincinnati, OH, MRI Report, dated 26 March 2012, that shows an MRI of the applicant's left shoulder revealed an extensive labral tear extending posteriorly from the twelve o'clock to six o'clock position with glenoid labral separation and moderate chondromalacia of the posterior inferior glenoid fossa.
   
8.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures 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.

   a.  Chapter 3 (Policies) provides in:

    	(1)  paragraph 3-8 (Counseling provided to Soldier) that the appointed PEBLO at the medical treatment facility (MTF) is responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.  For this purpose, the MTF commander will name an experienced and qualified officer, noncommissioned officer, or civilian employee as the PEBLO.

    	(2)  Counseling will cover as a minimum, the following areas:  legal rights (including the sequence of and the nature of disability processing); effects and recommendations of the MEB and PEB findings; estimated disability retired or severance pay (after receipt of PEB findings and recommendations); probable grade upon retirement; potential veteran's benefits; recourse to and preparation of rebuttals to PEB findings and recommendations; Disabled Veterans Outreach Program; and post-retirement insurance programs and the Survivor Benefit Plan.

    	(3)  Counseling by the appointed legal counsel is provided when the Soldier requests a formal hearing.
   
   b.  Chapter 4 (Procedures), paragraph 4-18 (Initial processing), shows that upon receipt of a case by the PEB, the case file will be reviewed to ensure it is complete.  If documents are missing, action will be taken to complete the file. When the case file is complete, it may be referred to the board for evaluation. The PEB may return a case to the MTF commander for additional information.

   c.  Appendix B, provides guidance for the Army's application of the VASRD. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Once a Soldier is determined to be physically unfit for further military service, a percentage rating is applied to the unfitting condition from the VASRD.  The percentage is applied based on the severity of the condition.

9.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has impairment rated at less than 30% disabling.  It further provides, at section 1201, for the physical disability retirement of a member who has impairment rated at least 30% disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was retired due to physical disability because the board did not consider his shoulder injury and the PEBLO did not provide him the proper information and assistance during the Physical Disability Evaluation System (PDES) process.

2.  The evidence of record shows the MEB considered the applicant's entire case file.  Moreover, the applicant certified that the MEB accurately covered all of his medical conditions when his case was referred to the PEB.  The PEB also considered several medical conditions that were not medically disqualifying.

3.  The PEB found the applicant medically unfit due to upper back strain with Lumbar Intervertebral Disc Syndrome.  He received a 10% disability rating with severance pay.  

4.  Except for the one rated condition, the several medical conditions discussed above did not keep the applicant from performing his duty.

5.  The evidence of record shows that the applicant's case was thoroughly reviewed and carefully considered throughout the PDES process.  The available evidence does not show the Army misapplied either the medical factors involved or the governing regulatory guidance concerning his disability processing.  Therefore, the applicant's MEB and PEB proceedings are considered proper and equitable.

6.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.

7.  Despite the applicant's contentions, there is no evidence of record to show that he was provided improper or inaccurate information regarding the Army PDES process. 

   a.  The applicant provides no military medical records that show he sustained a left shoulder injury while he was on active duty.

   b.  The evidence of record indicates that, at some point subsequent to both his MEB and PEB, the applicant injured his shoulder.  The applicant reported to his civilian provider that the injury occurred on 15 December 2011.

   c.  The evidence of record shows the applicant was advised by the PEBLO on recourse to and preparation of rebuttals to PEB findings and recommendations. There is no evidence the applicant took such action.

   d.  A civilian physician found the applicant's condition to be asymptomatic (i.e., neither causing nor exhibiting symptoms).  It is unlikely such a condition would have been found unfitting.

8.  In view of all 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)                                         AR20120021797



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021797



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1