IN THE CASE OF:	   

		BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140002520 


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 that his records be corrected to show he did not have a pre-existing back condition when he entered the service and that he did not request discharge.

2.  The applicant states he entered the service without a back condition.  He injured his back during advanced individual training as shown in his military records.  He goes on to state the signature and initials were forged on documents that indicate he was aware of a pre-existing back condition.  This error prevents him from qualifying for disability benefits.

3.  The applicant provides copies of his medical records, request for discharge, medical board proceedings, Department of Veterans Affairs (VA) Rating Decision, and VA treatment records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s records be corrected to show that he was discharged by reason of permanent disability. 

2.  Counsel states, in effect, that the applicant’s signature/initials on the documents contained in his records indicating that he told military officials he had a pre-existing back disorder and that he requested discharge are clearly forgeries.  He goes on to state the applicant’s claim file contains no objective medical evidence whatsoever that shows he had a pre-existing back condition. His military records show that he suffered a back injury while loading a military vehicle and he sought medical treatment several times due to pain.  Accordingly, he should have been medically discharged or retired by reason of permanent disability. 

3.  Counsel provides a four-page brief explaining his argument in detail.

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 May 1970, the applicant underwent his induction physical/medical examination and his Report of Medical Examination indicates he was determined to be acceptable for induction; however, he claims ailments not verified by the medical officer and he was advised to provide documentary evidence to substantiate his claims to his Selective Service Board prior to induction.   

3.  On 15 September 1970, the applicant was inducted into the Army of the United States and at the time of induction he declared himself a conscientious objector.  He was transferred to Fort Sam Houston, Texas to undergo modified basic training and advanced individual training (AIT) as a medical specialist (corpsman).

4.  On 7 January 1971, the applicant submitted a request to change his military occupational specialty because his religious beliefs did not allow him to take or give medicines to heal the body.  His request was subsequently approved. 

5.  On 14 January 1971, the applicant went on sick call complaining of lower back pain and indicated that he hurt his back trying to lift something heavy.  He was seen again on 15 January 1971 and he was prescribed medication.  He was seen again on 22 January 1971 and the physician noted that X-ray reports show he has bilateral spondylosis.  The physician also noted that he could get medically boarded, but this would be sent to his next duty station since he was leaving the next day.
6.  On 25 January 1971, the applicant departed Fort Sam Houston and arrived at Fort Jackson, South Carolina to undergo AIT as a light wheel vehicle driver.

7.  On 28 January 1971, he was seen at the dispensary for lower back pain and he informed officials that X-rays would show that he was disqualified for service.  On 1 February 1971, he was seen at the orthopedic clinic.

8.  On 3 February 1971, he was admitted to the hospital at Fort Jackson for the purpose of undergoing a medical board which found that he was not qualified for retention under the provisions of Army Regulation 40-501, paragraph 3-34a(3). He was diagnosed as having spondylolisthesis, L5-S1, Grade I, with bilateral spondylolysis, symptomatic.  The narrative summary prepared at the time indicates the applicant was a 20 year old white male who had been suffering from low back pain for the past 5 years.  Approximately 3 weeks ago he hurt his back while helping to lift approximately 300 pounds, while at Fort Sam Houston, Texas.  The medical board determined that the applicant’s condition existed prior to service (EPTS) and that he should be discharged for an EPTS condition.  On 
8 February 1971, the applicant indicated by his signature that he agreed with the findings and recommendations of the board.

9.  Meanwhile, on 3 February 1971, the applicant submitted a request for expeditious discharge under the provisions of Army Regulation 635-40.  He stated that he had been fully informed and understood that he was entitled to the same consideration and processing as any other member of the Army for physical disability and elected not to exercise that right.  He stated that he understood entitlement to VA benefits would be determined by the VA.

10.  On 12 February 1971, he was honorably discharged under the provisions of Army Regulation 635-40, chapter 9, due to physical disability, EPTS.  He was assigned SPN 277.  (This means an individual makes application for discharge.)  He had completed 4 months and 28 days of active service.

11.  The applicant filed a claim with the VA on 18 February 1971 and on 2 April 1971, the VA determined that his disabilities were not incurred in or aggravated by service.

12.  On 18 October 2011, he filed an appeal with the VA claiming that his records incorrectly reflected an EPTS condition.  He has not provided the results of that appeal with his application.

13.  Army Regulation 635-40 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.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  The disability must not have been incurred during a period of unauthorized absence.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in whether or not an Army rating is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  

DISCUSSION AND CONCLUSIONS:

1.   The applicant’s contentions and supporting documents have been carefully considered.

2.  The applicant comes to the Board 40+ years after his discharge contending that he did not have a pre-existing condition, that he did not request an expeditious discharge, and that his signature and initials contained in his medical proceedings are all forgeries.  However, he has not provided evidence of a sufficiently convincing nature to show that such was the case. 

3.  The applicant’s contentions would require evidence to show that a conspiracy existed at the time between the physicians who examined the applicant, the physicians who convened his medical board, hospital administrative personnel, and his unit.  The applicant has provided no such evidence.

4.  Therefore, in the absence of evidence to show otherwise, it must be presumed that his discharge was conducted in accordance with the regulations in effect at the time with no violations of his rights.
5.  Accordingly, there appears to be no basis to grant the applicant’s request to change his records to show that his condition was incurred during or aggravated by service or that he was discharged by reason of permanent disability.   

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)                                         AR20140002520



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ABCMR Record of Proceedings (cont)                                         AR20140002520



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