IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20130010752 


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 reinstatement or a correction of her records to allow her to reenlist in the same rank as she was discharged.

2.  The applicant states based on two recent medical evaluations there is no medical proof to support the finding that she is medically unfit for duty.  

3.  The applicant provides copies of her -

* Medical Evaluation Board (MEB)
* Physical Evaluation Board (PEB)
* Army Physical Fitness Test (APFT) scorecards
* three award recommendations
* Officer Record Brief (ORB)
* 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* discharge orders
* a DVD showing her performing physical activities
* letters from two post-service doctor's evaluations
* seven letters of support/recommendation 
* three race completion and results certificates

CONSIDERATION OF EVIDENCE:

1.  The applicant entered officer candidate training on 1 October 2009 and was commissioned on 18 March 2010.
2.  The applicant reported that she suffered an injury to her back in the 7th week of basic training while performing a rucksack exercise.  This reported injury is supported by later evaluations in her service medical records.

3.  The majority of the applicant's service medical records are not available for review.  The available records show treatment for reoccurring back pain that included light duty, epidural steroid injection, physical therapy, and use of ibuprofen, naproxen sodium, hydrocodone, oxycodone, and/or vicodin for pain management. 

4.  The applicant was given a permanent L-3 profile on 9 January 2012.  The profile restrictions included no running, bending, twisting, climbing, crawling, jumping/landing, lifting/lowering/carrying of more than 35 pounds, and standing for more than 30 minutes.

5.  Her Army Physical Fitness Test (APFT) scorecards show the applicant passed all but her very first APFT with mid to high scores.

6. On the applicant's 9 September 2011 OER, her rater marked her as Best Qualified with the senior rater marking her as in the center of mass.  There is no indication of any medical condition interfering with her duty performance.

7.  An MEB found that the applicant suffered from nine medical conditions including thoracolumbar scoliosis (unacceptable), degenerative joint disease (DJD) of the lumbosacral spine (unacceptable), and degenerative disc disease (DDD) of the thoracic and cervical spine (acceptable).  It is stated that the Soldier had low back pain since week 7 of basic training; she has undergone epidural steroid injection and physical therapy.  

8.  An MRI completed at the time of the MEB showed a cervical lordosis (scoliosis) with a very small right central bulge of disc protrusion at T8-T9.  There was no evidence of disc herniation of the cervical or thoracic spine.  The applicant underwent extended profiling, physical therapy, and trials of anti-inflammatory/analgesic medication.  It was opined that despite treatment, she has not been able to perform full duty.  Her physical profile indicated she -

		can			cannot				 
	•  march to standard 	•  run to standard
	•  do push-ups to standard	•  due sit-ups to standard
	•  wear uniform and boots	•  wear load-bearing equipment (LBE)
	•  carry and fire a weapon	•  live in austere environment 
	•  wear a helmet for at least 	•  ride in a military vehicle for 
	     12 hours a day	     12 hours a day
		can		cannot				 

	•  evade direct and indirect fire	•wear body armor for at least 
	•  wear a protective mask and		12 hours a day
	     MOPP4 for 2 continuous hours	•move 40 pounds 100 yards
			while wearing protective gear

9.  The applicant concurred with the findings of the MEB.

10.  In a Commander's Performance and Functional Statement, her commander stated she performs and accomplishes all tasks/missions above standard and with no difficulties.  He described her as an outstanding Soldier with unlimited potential.  He recommended retention instead of discharge.  

11.  The PEB found the applicant unfit for duty based on the diagnosis (Dx) of thoracolumbar scoliosis, DDD of the thoracic spine, and DJD of the lumbosacral spine.  It justified the finding stating she had undergone epidural steroid injection and physical therapy.  Despite treatment, Soldier has not been able to perform full duty.  These conditions are unfitting since Soldier is unable to carry and fire individual assigned weapon, evade direct and indirect fire, wear body armor or LBE for at least 12 hours per day or conduct APFT.  The PEB recommended physical disability separation with a 10 percent disability evaluation.  

12.  The applicant concurred with the findings and waived her right to a formal hearing.

13.  On 18 September 2012, the applicant was discharged, as a 1st lieutenant, by reason of physical disability with receipt of disability severance pay.

14.  Post discharge the applicant underwent two private medical evaluations that both found no significant abnormal findings and specifically no findings of cervical, thoracic, or lumbar DDD.  It was noted that although she does have a 16-degree lumbar scoliosis (curvature of the spine), she is in top physical condition as confirmed by her cross-fit training video.  It was opined that she should be able to carry and fire her individual assigned weapon, wear body armor for 12 or more hours, and conduct APFT without worsening her mild scoliosis.  

15.  In his statement of support, Colonel C-------- described the applicant as a dedicated, hard-working, tenacious, and fully-capable junior officer.  She excelled as a company executive officer (XO) and brought an element of maturity and compassion to her training company.  He recommended the applicant be reinstated.  
16.  In his statement of support, Colonel J------ notes that while on active duty the applicant received three different diagnoses for the same condition, only one being a service eliminating condition.  He described the applicant as a dedicated, hard working, tenacious, and fully-capable junior officer.  She excelled in her role as a company XO.  He recommended the applicant's file be reviewed to determine the correct diagnosis.  He recommended the applicant be reinstated.  

17.  In his statement, Major B--------- states the applicant served under him for a period of time while awaiting school attendance.  She always had a can-do attitude and completed all tasks assigned without worry or need to follow-up to ensure the task was completed correctly.  Even when in pain for a back or foot injury she attended and was always out front during the daily physical fitness formations.  The applicant was one of hardest working officers he has ever met.  He recommended the applicant be reinstated.  

18.  In his statement of support, Captain M----- states that prior to the MEB/PEB process the applicant preformed all assigned tasks assigned to a high standard and was recognized as the top lieutenant of the battalion.  The applicant is the type of young officer who should be groomed for future leadership.  He recommended the applicant be reinstated.  

19.  In his statement of support, Mr. F-------, a Human Resources Specialist, states he had the pleasure of working with the applicant at Fort Lee when she was assigned there.  He described her performance as being ranked above her peers.  The applicant always placed the mission first and never allowed her physical discomfort to affect the performance of her duties.  As a combat veteran with over 20 years of experience as a Soldier and Department of Army civilian specialist he describes the applicant as one of the most professional and competent officers he had the pleasure to serve with.  He recommended a favorable decision be made to allow the applicant to reenter the Army.  

20.  In his statement of support, Master Sergeant B-------- states he had the privilege of serving with the applicant and was shocked and disappointed in the decision to medically discharge the applicant.  He described the applicant as a mentally and physically tough Soldier.  She had a "team first" mentality and was a superior leader with genuine concern for her Soldiers.  She led from the front in a way unmatched by her peers.  She was recognized for her efforts by receiving an Army Commendation Medal and he states her duty performance ranks in the top 5 percent of all XO's that he has served with over his 25-year career.  He recommended the applicant be reinstated.  

21.  In his statement of support, Master Sergeant R----- states he had the pleasure of serving with the applicant as a 2nd lieutenant at Fort Lee.  He believes the applicant stood head and shoulders above other officers.  She constantly showed herself to be a mentally and physically tough Soldier dedicated to duty and Soldier integrity.  The applicant is an inspirational Soldier.  In a time the Army is worrying about toxic officers, the applicant is the kind of officer the Army needs and wants.  He has remained in contact with the applicant following her separation and knows she did not give up on her goal to serve and that she has worked relentlessly to work out her problems and get better each day.  He recommended the applicant be reinstated.  

22.  A 1 November 2013 CrossFit Talon newsblog named the applicant their Athlete of the Month.  The article stated that following an in-service injury in 2009 she had progressively more back pain and she was told she would never be able to run long distances.  However, by 2011 she was training with the Army Ten Milers and she ran her first marathon in September 2012.  She joined the Team Talon Crossfit Endurance and Olympic Weightlifting Program.  She participated in the Chicago Half Marathon twice and had cut over 30 minutes off her time during the second run.

23.  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.

24.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation medical fitness standards for enlistment, induction, and appointment, including officers, and the standards for retention and separation.  It provides the following:

   a.  The mere presence of an impairment does not, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

	b.  If the Soldier accepts the findings and recommendations of the informal PEB, the recorder will assemble the records.  The proceedings will be approved for the Secretary of the Army and forwarded to U.S. Army Human Resources Command for final disposition.

   c.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.

	d.  All relevant evidence must be considered in evaluating the fitness of a Soldier.  Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence.  Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made.  For example, when a referral for physical evaluation immediately follows acute, grave illness or injury, the medical evaluation may have the greater weight.  This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army.  A Soldier may be referred for physical evaluation under other circumstances.  If so, evaluations of the performance of duty by supervisors (letters, efficiency reports, or personal testimony) may provide better evidence than a clinical estimate by the Soldier’s physician describing the physical ability to perform the duties of the office, grade, rank, or rating.  Thus, if the evidence establishes the fact that the Soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty.  This is true even though medical evidence indicates the Soldier’s physical ability to perform such duties may be questionable.  However, inadequate duty performance should not be considered as evidence of physical unfitness unless a cause and effect relationship exists between the inadequate duty performance and the presence of physical disabilities.

	e.  For entrance, a finding of lumbar scoliosis greater than 20 degrees, thoracic scoliosis greater than 30 degrees, or kyphosis and lordosis greater than 55 degrees is disqualifying.

	f.  For entrance, a current herniated nucleus pulposus (i.e. DDD) or history of surgery to correct this condition is disqualifying.  

	g.  For retention, a herniation of nucleus pulposus with more than mild symptoms following appropriate treatment or remedial measures, with sufficient objective findings to demonstrate interference with the satisfactory performance of duty warrants referral to an MEB/PEB and release from active service.

   h.  For retention, scoliosis with severe deformity of over 2 inches deviation of tips of spinous process from the midline, or of lesser degree if recurrently symptomatic and interfering with military duties warrants referral to an MEB/PEB and release from active service. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant's application and supporting documentation and her MEB/PEB provide two very different pictures of the applicant.  On one hand she is shown to have a back condition that required multiple treatment regimens including the use of narcotic analgesics.  The other side of the picture shows that despite any pain she was suffering she was performing her assigned duty in an outstanding manner.

2.  The applicant was given multiple opportunities to contest her medical separation; however, she concurred with the findings of both MEB and PEB.

3.  The applicant had the opportunity to challenge the MEB/PEB findings and chose not to and she has provided insufficient evidence to clearly show that the MEB/PEB findings were in error at the time of her separation.

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)                                         AR20130010752



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ABCMR Record of Proceedings (cont)                                         AR20130010752



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