IN THE CASE OF:  	  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140010415 


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 record to show he was retired due to physical disability.

2.  The applicant states, in effect, that the separation for disability with severance pay was erroneous and unfair because of the magnetic resonance imaging (MRI) results and because he was not aware of these results until 2014.

3.  The applicant provides copies of the 10 April 2008 MRI results and reviews of them, his 3 September 2008 Physical Evaluation Board (PEB) report, and the 15 September 2008 Physical Disability Agency (PDA) response to his disagreement with the PEB decision.

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 entered the Regular Army on 28 April 2005.  He completed training as a human intelligence collector in military occupational specialty (MOS) 35M and served in Iraq.  He was separated in pay grade E-4 on 8 September 2008 due to physical disability.  His awards included the Army Commendation Medal and the Army Good Conduct Medal.

3.  In February 2008 the applicant sought medical attention because of back pain.  Various MRI procedures of his cervical, thoracic and lumbar spine were performed and the results were interpreted by a radiologist.  The radiologist noted the following abnormalities:

	a.  six lumbar vertebrae were identified (there are normally only 5) the last freely movable vertebra was designated at L5.  There was forward displacement of the 5th lumbar (L5) vertebra over the 1st sacral (S1) vertebra and mild disc height loss;

	b  there was mild upper thoracic scoliosis (sideways curvature) to the left; and 

	c.  the cervical spine showed some abnormal straightening the neck that might be a reflection of pain. 

4.  At a 13 May 2008 follow-up, the applicant reported that he had noticed increased back pain during deployment in December 2007.  This was accompanied by pain radiating down the right leg.  This pain was controllable with medication but the applicant was unable to undergo physical therapy.  The medication was continued and the applicant was given literature so he could research possible surgical options.  He was to follow up with the orthopedic clinic if the condition worsened.

5.  The applicant was seen 30 June 2008.  The MRI was reexamined and explained to him.  He was scheduled for follow up in 5 weeks or sooner if necessary. 

6.  On 11 September 2008  an informal PEB found the applicant disabled due to spondylolisthesis (the forward movement of a vertebra out of the proper position and onto the bone below it) rated at 10 percent under Department of Veterans Affairs (VA) code  5239.  The applicant disagreed with the PEB, but the Army Physical Disability Agency upheld the PEB's decision.

7..  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.

8.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3 provides that:

	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.  Also, the fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

	b. 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.

	c.  Back conditions under VA codes 5235 through 5243 not involving unfavorable ankylosis (progressive bony fusion of the vertebrae) are normally rated by considering combined range of motion, changes in characteristics such as gait, contour, muscle spasm and loss of vertebral height.  Loss of vertebral height of less than 50 percent in combination with the other factors is ratable at 10 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation for disability with severance pay should be changed to disability retirement because the MRI showed certain abnormalities and because he did not have access to the MRI until 2014.

2.  The governing regulation provides that a condition is unfitting because of the impact upon the particular Soldier's performance of duty.  Thus two Soldiers might carry identical diagnoses but be rated quite differently.

3.  In the applicant's case he was rated at 10 percent because his condition had a  relatively minor negative impact on his performance of duty.  He would not have been rated higher simply because of a different diagnosis or because an MRI or some other test showed some specific abnormality.

4.  Furthermore, the available record shows that the MRI was available and discussed with him on 30 June 2008. 

5.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated in accordance with the VA Schedule for Rating Disabilities at the time of his discharge.  He could not be medically retired because he was not rated at least 30 percent disabled.

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)                                         AR20140010415





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ABCMR Record of Proceedings (cont)                                         AR20140010415



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