IN THE CASE OF:	  

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130006142 


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, in effect, physical disability separation or retirement and promotion to pay grade E-5.

2.  The applicant states his diagnosis should be changed from fibromyalgia to herniated cervical disc.  He also states:

	a.  He sought treatment for years but he never received a magnetic resonance imaging (MRI) test which would have shown the "blown disc”’ which required surgical fusion of his neck vertebrae.

	b.  He completed the Noncommissioned Officer Academy but never received the rank and pay.  

	c.  He discovered the error in November 2004 when he was referred to an orthopedist who ordered an MRI.

	d.  He returned to work after neck surgery.  This proves, if he had been properly diagnosed and received surgery, he could have returned to duty.  

	e.  He waited so long to apply to make sure that fibromyalgia was not the cause of his problems.  

3.  The applicant provides copies of "all medical records," including copies of many service record documents.

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.  On 14 November 1990, the applicant enlisted in the Ohio Army National Guard (OHARNG).  He completed initial active duty training (IADT) between      12 July and 27 November 1991.

3.  There are no medical records in his official records; all of the following medical information was provided by the applicant.

4.  During IADT he sought medical care:

* in August, for left calf pain; 
* in early October for a ruptured blister pain and swelling in his left heel/ankle, foot and small toe without any report of trauma
* contact dermatitis
* the left ankle/foot pain was determined to be bursitis and infection set in, this problem persisted through September

5.  The applicant progressed to pay grade E-4 and completed the primary leadership development course.

6.  A 15 January 1994 physical examination found him fit for retention.

7.  Copies of civilian medical documents include:

	a.  chiropractic practice submissions consisting of:

		(1)  a 2 October 1995 x-ray report recording impressions of mild leftward curvature of the lower back and decreased disc height suggesting the possible develop of ankylosing spondylitis (spinal arthritis);
		(2)  a 2 October 1995 x-ray report recording impressions of decreased range of motion in the neck due to a rightward tilt and reversed curvature of the cervical spine;

		(3)  a 3 March 1997 x-ray report recording impressions of reversed curvature and reduced range of motion of the neck and hyperplasia excess growth of the right  transverse process of C7 vertebra – an attached note indicates no significant changes from the 1995 study; 

		(4)  a 24 January 1998 x-ray report recording an impression of posture changes arising from a convexity of the lumbar spine; and 

		(5)  a 4 April 1998 x-ray report recording an impression of range of motion and posture changes of the neck as previously described – there was no evidence of bone or joint pathology.

	b.  A neurologist's report indicated he examined the applicant on 20 July 1998 and found no neurological problem but referred him for other consultations.

8.  The applicant underwent a military physical examination in March 1999. Associated documents include:

	a.  medical history, dated 14 March 1999, indicates problems with range of motion of the cervical spine, tense neck muscles, and a flat back associated with the lumbar spine; 

	b.  a 5 March 1999 note from a chiropractor stating he had treated the applicant for cervical sprain/strain, lumbar sprain/strain, thoracic sprain/strain/ lumbosacral plexus, lumbar segmental dysfunction, cervical (nerve) root lesion and temporomandibular joint (TMJ) syndrome; and 

	c.  the examining physician, an Army Medical Corps captain, considered the applicant's neck and back pain to be anxiety based because of the above examinations and diagnoses – he found the applicant fit for duty with a profile of 1 1 1 1 1 2.

9.  At a 10 April 1999 annual medical certification the applicant reported that he was awaiting a civilian evaluation for fibromyalgia and was awaiting an appointment with a rheumatologist.  The applicant was referred for further medical evaluation.  The examining doctor, an Army Medical Corps colonel, noted the applicant stated that his condition prevented him performing any part of the standard Army Physical Fitness Test (APFT) and that, although his military specialty required him to lift only moderate weights, he was barely able to do so. 10.  The physician recommended referral to a Medical Duty Review Board (MDRB) and separation with a T3 T3 T3 1 1 1 profile.  The applicant's company commander recommended retention pending a final diagnosis and evaluation.

11. On 5 June 1999, the MDRB found, "Generalized muscle pain & weakness over the entire body is incompatible with military service" and recommended separation.  The applicant was so notified and provided 60 days but not later than 31 August 1999 to provide any additional information.

12.  On 30 August 1999, the Director of Personnel, OHARNG directed separation and, on 1 October 1999, he was discharged from the OHARNG and as a Reserve of the Army due to medical unfitness for retention.  

13.  In addition to the civilian medical records cited above, the applicant submitted more recent civilian medical record, including ones that show:

	a.  a September 2004 MRI showed a deformed disc at C5-6 and probable impingement of the nerve on the right side – he had surgery in November 2004; 
	
	b.  his neck pain and arm numbness and weakness returned after the surgery;

	c  in January 2011 the applicant was still seeking medical help for "chronic headaches, muscle cramps, as well as chronic pain all over his body," and;

	d.  in November 2011 a neurologist noticed, "quite a bit of scarring and changes in his hands.  When questioned the patient stated that he had been doing 'scrapping' which he described as disassembling scrap metal and taking it to a scrap yard for profit which is inconsistent with his description of limitations secondary to spine pain."

14.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

15.  National Guard Regulation 600-200 (Enlisted Personnel Management) stated in part that Specialists and Corporals could be considered for promotion without regard to their current levels of NCOES (NCO Educational System) but were not promotable to Sergeant until they completed the primary leadership development course.  It also stated that Soldiers could be promoted only into vacant positions based on being placed in the selection objective of a promotion list by board action.  States would conduct one board and publish a promotion list for each rank about once each year.  The promotion list is neither a permanent standing list nor an order of merit list.  Each list is a new list and is intended to remain valid until exhausted or a subsequent list supersedes it. 

DISCUSSION AND CONCLUSIONS:

1.  Considering the limited record of active duty performed by the applicant, there is insufficient evidence to show the applicant incurred any disabling medical condition while entitled to basic pay, which is the legislative requirement for eligibility for physical disability retirement of separation.

2.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army, nor error or injustice in the disposition of his case by his separation from the service.

3.  Completion of a required course is not the sole criteria for promotion.  There is no available evidence that the applicant was recommended or selected for promotion to pay grade E-5.

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)                                         AR20130006142





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ABCMR Record of Proceedings (cont)                                         AR20130006142



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