IN THE CASE OF: 

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130010468 


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 discharged or retired for medical reasons.

2.  The applicant states the separation authority, separation code, and narrative reason for his separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) should correspond to a medical discharge or retirement.  He believes the medical conditions he incurred and/or aggravated during his time in the service warranted the above.  He states he believes his separation code of "JFW" is incorrect because he was discharged due to six service-connected disabilities recognized by the Department of Veterans Affairs (VA) and currently rated at 90 percent disabling.  These service-connected disabilities are the reason he was unable to meet the medical standards for continued service in the military.  However, these conditions were ignored as he was out-processed as having a condition that existed prior to service (EPTS), though his medical condition (scoliosis) required no waiver for enlistment.

	a.  He passed physical fitness tests during basic training and advanced individual training (AIT).  He states injuries or aggravation of previous injuries over a 6-month period resulted in his having permanent, chronic, and un-resolvable disabilities for the rest of his life.  The current separation code and authority are negatively impacting his ability to receive specific benefits such as 100 percent eligibility for the Post 9/11 GI Bill given that the VA requires a code or reason reflecting physical disability to allow an individual 100 percent eligibility.  

	b.  He has six service-connected disabilities which are all permanent and unfortunately this is not reflected on his DD Form 214.  His condition at discharge was far worse than what was shown at the Military Entrance Processing Station (MEPS) at his enlistment.  MEPS indicated everything was normal except for "<15% scoliosis," which did not require a waiver.  He states that the VA does not grant service connection for disabilities that were not incurred or aggravated during military service.

3.  The applicant provides:

* personal statement
* DD Form 2808 (Report of Medical Examination)
* Standard Form (SF) 600 (Health Record - Chronological Record of Medical Care)
* VA award letter
 
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 6 February 2006, he enlisted in the Regular Army.  His record shows he did not complete AIT.

3.  His enlistment DD Form 2808, dated 27 January 2006, contains a notation next to item 36 (Spine, other musculoskeletal) – "DL Scoliosis <15 degrees."   

4.  An SF 600, dated 11 August 2006, shows findings of thoracolumbar scoliosis convex left in the thoracic, and right in the lumbar spine.  Cobb angle was approximately 18 degrees in the lumbar spine as measured from the bottom of T11 to the bottom of L5.  No anomalies were seen.  The form further indicated the applicant was told he had scoliosis and was unable to train due to back pain.

5.  A DD Form 2808, dated 15 August 2006, completed in conjunction with his administrative discharge proceedings shows he was qualified for service.

6.  His record contains a DA Form 4707 (Entrance Physical Standards Board Proceedings) stating the applicant entered active duty from a sedentary life style and immediately began to experience lower back pain with most physical training activities.  During AIT the pain became unmanageable, requiring a continuous profile, physical therapy, and chiropractic manipulation.  Eventually his commanding officer and the evaluating medical officer concluded through direct observation that the applicant was incapable of performing basic Soldier duties with no prospect of improvement.

	a.  He was diagnosed with scoliosis.  The assessment shows his deviation or curvature of the spine was disqualifying for enlistment when it was symptomatic, associated with physical findings, and demonstrable by x-ray.  The board found he was medically unfit for enlistment in accordance with medical fitness standards and in the opinion of the evaluating physicians the condition was EPTS.

	b.  It was recommended the applicant be separated from the service under the provisions of paragraph 5-11, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) based on his EPTS condition.

	c.  This form further shows he was informed of the medical findings, he concurred with the proceedings, and he requested to be discharged from the Army without delay.

7.  On 12 October 2006, he was discharged from active duty under the provisions of Army Regulation 635-200 with a character of service of "uncharacterized." 

8.  His DD Form 214 shows he completed 8 months and 7 days of total active service.  It further shows:

* on 16 May 2008, the Army Discharge Review Board changed his character of service to "honorable"
* in item 25 (Separation Authority) - "AR 635-200, Para  5-11"
* in item 26 (Separation Code) - "JFW"
* item 28 (Narrative Reason for Separation) - "failed medical/ physical/procurement standards"  

9.  He provides a VA award letter showing he was assigned a 40 percent disability rating for thoracolumbar scoliosis with degenerative disc disease.


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty will be separated.  Such conditions must be discovered within 6 months of the Soldier's initial entrance on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier's initial entrance on active duty for the Regular Army that:

		(1)  would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and

		(2)  does not disqualify him or her for retention in the military service per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.

	a.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that 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. 

	b.  Appendix B (Army Application of the VA Schedule for Rating Disabilities) states hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service-aggravated complications are clearly documented or unless a Soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his record to show he was discharged for physical disability reasons.

2.  His military entrance physical showed he had scoliosis with an angle of less than 15 degrees.  His record shows he was treated for recurring back pain during basic training and AIT.  He underwent a medical examination in conjunction with his separation processing.  The results of this examination show he was qualified for service.

3.  A DA Form 4707 completed in conjunction with his separation shows he was diagnosed with scoliosis with a Cobb angle measuring 18 degrees.  This form further shows he was informed of the medical findings, he concurred with the proceedings, and he requested to be discharged from the Army without delay.

4.  He contends since the VA granted him service connection for six medical conditions, he should have been discharged due to these physical disabilities, rather than an EPTS condition.  However, there is no evidence indicating he had a medical condition of such severity that it would have warranted processing him through the PDES during his period of military service other than his EPTS scoliosis.  As such, there is no evidence of error in his reason for discharge.

5.  The ABCMR does not grant requests for changes to discharges solely for the purpose of making an applicant eligible for VA education benefits.  Each case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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)                                         AR20130010468





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ABCMR Record of Proceedings (cont)                                         AR20130010468



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