IN THE CASE OF:	

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013614 


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 a medical retirement and that his uncharacterized discharge be changed to honorable.

2.  The applicant states: 

	a.  he wants his uncharacterized discharge changed to a medical retirement with honorable characterization for syringomyelia (disorder in which a cyst (syrinx) forms within the spinal cord).

	b.  the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) presumes syringomyelia is service-connected and this condition requires a Physical Evaluation Board (PEB) referral.

	c.  the incident in question occurred on active duty and is only supported by active duty records.  He has provided enough medical records to prove a diagnosis and a violation of regulation from the origin of the discharge.

	d.  he enlisted in the Army National Guard as an infantryman and was ordered to attend the 14-week One Station Unit Training (OSUT) at Fort Benning, GA.  He started having back pain about 2 months into service, but he continued to train because he figured it was normal.  He sought medical attention and was referred for physical therapy.  He took an 18-day holiday leave after the completion of the basic training of OSUT.  During leave the pain never “resided.”  When he returned he attempted to continue to train as the pain wasn't limiting.  Suddenly the pain worsened with an added degree of back pain, leg impairments, and new wide range of symptoms.

	e.  he was diagnosed with a presumed service-connected spinal condition called syringomyelia.  This condition precludes the administrative discharge regulation and requires a referral to a PEB.  An opinion from a physician assistant, himself, or military entrance medical personnel is not sufficient to overcome the regulation and presumption.  The burden of proof was on the Army to prove this condition was not service-connected and it never was.
  
	f.  syringomyelia is a military disqualifier.  He doesn't meet the medical fitness standards for retention.  He points out that Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) states service members who are identified with nonwaived medical conditions or physical defects that existed prior to service (EPTS) may be administratively separated without referral into the Disability Evaluation System when the medical condition meets the following:

* the medical impairment is identified prior to or within 180 days of the member’s initial entry on active duty or active duty for training or full-time National Guard duty
* the medical impairment does not meet accession standards under DOD Directive 6130.3 (Physical Standards for Appointment, Enlistment, and Induction)
* the impairment is not a condition that is cause for referral to the PEB
* service aggravation of the impairment has not occurred (If the service member contests the “not Service aggravated” determination by the physician recommending separation, the member may request the Medical Evaluation Board be forwarded to the PEB for review)   

	g.  he could not contest the "not service aggravated" because he agreed with the medical finding that stated it was aggravated.  His sworn statement and his drill sergeant and company commander statements all suggest a violation of the regulation.

	h.  he is seeking an honorable characterization of discharge.   His good character and improvement in training are noted in the statement from his drill sergeant.  He was forced out of the military because of a medical condition that disqualified him from continuing to serve.  His disability is a progressive spinal disability associated with complications of physical and mental functions, chronic pain, and a lifetime of medication.  He served with good intention.  He pushed his body hard ignoring the pain thinking it was normal.


	i.  to overcome the presumption of incurrence the Army will have to show by clear and unmistakable evidence that this syrinx was EPTS.  There is little known information about what causes this condition.  Keep in mind that the first symptom and visit to sick call was about week 7-8 of training, the first Magnetic Resonance Imaging (MRI) was 3-4 months into service, all of which was extremely physical including daily high impact, weight bearing, and a wide range of activities involving spinal articulation.  Aggravation to his disc osteophyte may have caused the incurrence of syringomyelia.

	j.  if this condition is deemed EPTS, to overcome the aggravation presumption is less than likely.  Syringomyelia is slow progressing and is typically worsened by an activity that would cause sudden fluctuation of cerebral spinal fluid.  The very nature of military service justifies aggravation.

	k.  this condition is not rated based off residuals or impairments, but on a diagnosis alone.  Assuming the presumption of incurrence is overcome and this condition is deemed EPTS then an EPTS portion could be deducted.  He does not concur with an EPTS portion deduction to the minimum rating of 30% because this condition was not an impairment, or even painful until weeks or months into service.  The condition is slow progressing and sudden onset may occur with straining which is a natural physical demand of basic training.  For this condition to become a disability in a very short amount of time during a very physically demanding period of service justifies "100%" aggravation based off the known information on syringomyelia.  Given the sensitivity of the condition, it would be hard to objectify a deduction.
	
3.  The applicant provides:

* Letter, dated 1 July 2013, from the New York Army National Guard (NYARNG), Adjutant General Corps
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 2012
* Syringomyelia fact sheet
* DA Forms 4856 (Developmental Counseling Form)
* DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings, dated 25 January 2012
* DA Form 2823 (Sworn Statement)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)   




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 12 July 2011.  He was ordered to active duty for training on 17 October 2011.
 
2.  He provides a DA Form 4707, dated 25 January 2012, which shows an EPSBD diagnosed him as having chronic thoracic spine pain, disk osteophytes, and cord syringohydromyelia.  The form states:

* his chronic thoracic back pain was aggravated by the physical demands of basic training
* he did not receive a waiver for his medical condition upon joining the Army

3.  The EPSBD found him medically unfit for enlistment in accordance with current medical fitness standards and determined his conditions were EPTS.  The EPSBD recommended the applicant be separated from military service.  The reverse side of the form is blank which includes the actions by the service member, unit commander, and discharge authority.  

4.  He provides a sworn statement, dated 31 January 2012, wherein he states:

* he never experienced pain related to this injury prior to his military service
* during week 7 of basic training his back began to hurt
* after his holiday leave the pain worsened until he found the pain to be unbearable about week 11 of training
* during leave he rested, but the pain remained constantly mild  
* he had x-rays and an MRI and he was recommended for an EPTS separation
* he has not been training for 3 weeks and he still experiences a constant pain level of 3 to 5
* the pain is aggravated by training, but has slowly become less painful since his training ended

5.  On 1 March 2012, he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administration Separations), paragraph 5-11, due to failed medical/physical/procurement standards.  He completed 4 months and 15 days of total active service.

6.  Item 24 (Character of Service) of his DD Form 214 shows the entry "UNCHARACTERIZED."

7.  On 7 March 2012, he was discharged from the NYARNG.  His character of service was uncharacterized.
8.  He provides a letter, dated 1 July 2013, from the NYARNG, Adjutant General Corps, which states since the U.S. Army Medical Command, Fort Benning completed his EPSBD, neither the NYARNG nor The Adjutant General have the authority to revoke or change his uncharacterized discharge for failure to meet medical/physical procurement standards. 

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that 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 entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  For U.S. Army Soldier (USAR), entry-level status begins upon enlistment in the USAR.  For Soldiers ordered to inactive duty training (IADT) for one continuous period, it terminates 180 days after beginning training.  For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning phase II (advanced individual training).  Soldiers completing phase I (basic training or basic combat training) remain in entry-level status until 90 days after beginning phase II.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

12.  Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  

13.  Army Regulation 635-40, chapter 3, paragraph 3-39, does not list syringomyelia as a condition that requires referral to a PEB.

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/her office, rank, grade or rating because of disability incurred while entitled to basic pay.

15.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. 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.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

16.  The VASRD states that the minimum rating for VASRD Code 8024 (Syringomyelia) is 30%.  Note:  It is required for the minimum ratings for residuals under diagnostic codes 8000-8025, that there be ascertainable residuals.  Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease.  It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses.

17.  Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) of Army Regulation 40-501 states enlisted Soldiers identified within the first six months of active duty with a condition that existed prior to service that does not meet the standards of chapter 2 may be separated (or receive a waiver to remain on active duty) following an evaluation by an EPSBD, in accordance with Army Regulation 635-200, chapter 5.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was diagnosed with a presumed service-connected spinal condition called syringomyelia and that this condition precludes the administrative discharge regulation and is a referral to a PEB.  

2.  The governing regulation states enlisted Soldiers identified within the first six months of active duty with a condition that is EPTS that do not meet the standards of physical standards for enlistment may be separated (or receive a waiver to remain on active duty) following an evaluation by an EPSBD.

3.  In 2012, an EPSBD found him medically unfit for enlistment in accordance with current medical fitness standards and determined that his medical conditions existed prior to his entry into military service.  Although the DA Form 4707 provided by the applicant does not show the actions by the applicant, unit commander, and discharge authority, the applicant admitted he agreed to the medical finding.  Therefore, in the absence of evidence to the contrary, it must be presumed he concurred with the recommendation of the EPSBD and requested discharge from the Army without delay.  Therefore, there is no basis for granting the applicant’s request for a medical retirement.

4.  Since he was in an entry-level status when he was released from active duty in 2012, his service was uncharacterized which is properly reflected in item 24 of his DD Form 214.  Therefore, there is no basis for granting his request to change his character of service to honorable.

5.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated.

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)                                         AR20130013614





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ABCMR Record of Proceedings (cont)                                         AR20130013614



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