BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003616 


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, correction of his military records to show he was medically retired.

2.  He states that he feels the Medical Board based their decision on evidence that was not available to them at the time of his release from active duty.  He received a disability rating of 10 percent (%), but it was incorrect due to a lack of evidence and the doctor's reports.  The error involved in his case was undiagnosed trauma from a February 1972 auto accident which was found in the Department of Veterans Affairs (VA) examination.  Additionally, the VA examination revealed he had Type II Diabetes and that the onset was from the service.  All his medical issues were related to scoliosis that was not a problem as stated in his records. 

3.  He provides:

* Medical Record documents
* VA Medical Record documents
* Applicant's Claim Addendum Letter, dated 24 January 2014
* Consultation Report, dated 23 January 2014
* Medical Evaluation Board (MEB) Proceedings, dated 27 July 1979
* DD Form 214 (Report of Separation from Active Duty) for the period ending on 12  September 1979 
* DD Form 215 (Correction to DD Form 214)
* Letter, Subject:  Separation for Physical Disability, dated 6 September 1979
* Orders 164-10, dated 6 September 1979 
* Letter of Support, dated 6 December 2013

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.  The applicant enlisted in the Regular Army (RA) on 17 October 1969.  He was honorably discharged on 27 July 1970 for immediate reenlistment which was accomplished the following day.  He served on active duty for a total of 4 years,
9 months, and 10 days and was honorably released from active duty on 26 July 1974.

3.  On 11 December 1974, he again enlisted in the RA.   

4.  A Clinical Abstract, dated 27 July 1979, contained in his medical records, shows the applicant's chief complaint was chronic upper back pain.  The abstract stated:

The [applicant] was severely injured during his AIT [Advanced Individual Training] at Fort Sill in January 1970 at which time a 5-ton truck rolled over.  There were several individuals killed and he was hospitalized at Water Reed Army Medical Center for approximately 6 months.  He was offered a medical board at that time, but gradually improved and turned down the opportunity to get out of the service and continued on active duty until his ETS [Expiration Term of Service] on 26 July 1974 then coming back on active duty on 
11 December 1974.  He currently continues to have chronic upper back pain, especially with some pain in the right aspect of his neck and right shoulder.  Because of EPTS [existed prior to service] scoliosis which he had and plus the aggravation from the vehicular accident, he has had multiple reclassification attempts, all of which have been turned down.  Because of the inability of the Army to usefully reclassify him, the [applicant] is presented for a medical board.  
5.  The MEB Proceedings, dated 27 July 1979, show the applicant was present when the board convened and determined that he was medically unfit for (diagnosis 1) scoliosis and (diagnosis 2) chronic upper back pain, secondary to diagnosis 1 and severe injuries sustained in a training accident at Fort Sill, OK in January 1970.  The MEB recommended that the applicant appear before a Physical Evaluation Board (PEB).  

6.  On 8 August 1979, a PEB convened at Fort Sam Houston, TX and considered the applicant's condition of chronic upper back pain, secondary to scoliosis and injuries in January 1970, with approximately 80 degrees range of motion for right and left rotation of neck, pain, normal range of motion of shoulders, rated as strain with characteristic pain on motion.  He was determined to be physically unfit to perform the duties of his grade and military occupational specialty (MOS) due to residuals of an injury and scoliosis.  "Diagnosis 1, scoliosis, is an EPTS condition which has not been permanently service aggravated."  The PEB determined he was physically unfit and recommended he be separated with severance pay based on a 10 percent (%) disability rating.

7.  He initialed the PEB proceedings in block 13 (Election of Member) indicating "I concur and waive a formal hearing of my case."  He signed the form on 
14 August 1979.  Additionally, the counselor signed this form on the same date indicating that he had counseled the Soldier of the findings and recommendations of the PEB and explained the result of the findings and recommendations and his legal rights pertaining there to.  "The Member has made the election shown above."    

8.  On 12 September 1979, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, with disability severance pay.  He was credited with completing 9 years, 6 months, and 13 days of service.  He received $13,872.00 in disability severance pay.

9.  On 6 December 2013, an Orthopedic Surgeon, Highland Clinic, stated that he reviewed the applicant's Army medical records and opined that the Volkswagen accident in 1972 more likely than not aggravated his pre-existing condition and scoliosis.  He further stated it appeared that the applicant's condition went undiagnosed until now, most likely causing mobility issues as a young Soldier.

10.  On 10 December 2013, the VA rendered their Rating Decision as follows:

* Service connection for numbness to toe on left foot is granted with an evaluation of 0% effective 31 July 2012
* Service connection for diabetes Type II is denied
* Service connection for left hip from auto accident is denied
* Service connection for right hip secondary to left hip problem is denied
* Service connection for dental treatment purposes is denied for tooth problem due to car accident
* Service connection for mobility issue, legs and chest is denied
* Previous denial for service connection for scoliosis thoracic and lumbar spine is confirmed and continued 

11.  On 24 January 2014, the applicant stated he disagreed with the VA's decision of denial of his benefits and requested his claim be reopened.  He provided a brief explanation for each decision that was denied by the VA.  Additionally, he requested the VA amend his claim for disability due to service connection for Traumatic Brain Injury (TBI) for the 1972 bus accident, Neurigenic Hetterotopic Bone Growth due to undiagnosed TBI from the bus accident, as well as neck and back pain from the accident. 

12.  Army Regulation 635-40 states that the findings and recommendations of the informal PEB are recorded on a DA Form 199 (PEB Proceedings).  Block 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include the following:

* Concurrence with the findings and recommendations and waiver of a formal hearing 
* Nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the Soldier's reasons for nonconcurrence and waiver of a formal hearing
* Demand for a formal hearing with or without personal appearance
* Choice of counsel if a hearing is demanded
* Soldiers indicate their elections by checkmark in block 13 and sign and date the original and the MTF(Medical Treatment Facility) copies 

13.  The same regulation states the PEB liaison officer will counsel the Soldier and make him or her fully aware of the election options available, the processing procedures, and the benefits to which he/she will be entitled if separated or retired for physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows after the applicant's car accident in 1970 and during his 6-month hospitalization, he was offered a medical board.  However, he declined the opportunity to be released from the service and continued serving until his ETS in July 1974.  He again enlisted in the RA in December 1974.
2.  On 27 July 1979, the applicant was found unfit for duty for scoliosis and chronic upper back pain and recommended for a PEB.  On 8 August 1979, the PEB determined he was physically unfit to perform the duties of his grade and MOS due to residuals of an injury and scoliosis.  The board stated that scoliosis was an EPTS condition which was not permanently service aggravated.  He received a disability rating of 10%.

3.  The evidence of record further shows he signed the PEB Proceedings concurring with the board's findings and waving a formal hearing.  There is no evidence and he has not provided any to show that his disability rating was incorrect and/or he should have been medically retired.  

4.  There is also no indication, nearly 35 years later,04 that the MEB or the PEB were not aware of all his conditions at the time of their evaluation.  No medical evidence has been presented by the applicant to demonstrate an injustice in the disability ratings he received during his PEB.  In view of the evidence in this case, there is no basis for granting his 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)                                         AR20140003616





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ABCMR Record of Proceedings (cont)                                         AR20140003616



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