IN THE CASE OF:  	  

		BOARD DATE:  29 September 2015	  

		DOCKET NUMBER:  AR20150001270 


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 her record to show she was medically retired vice medically discharged with separation pay.

2.  The applicant states her medical evaluation board (MEB) and physical evaluation board (PEB) were conducted incorrectly and improperly.  Her examination was inaccurate and incomplete with no x-rays taken during her MEB physical evaluation.  She states she had a high risk pregnancy at the time of her MEB/PEB.  She was on bed rest and was unable to bend more than 5 degrees.  She had a host of other medical problems that were not addressed during the MEB physical exam.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 (MEB Proceedings)
* DD Form 199 (Revised PEB Proceedings)
* More than 600 pages of service and post service medical records

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 on 22 May 2000 through the delayed entry program.  She completed training and was awarded military occupational specialty 42L (Administrative Specialist).  She served in support of Operation Enduring Freedom in Kuwait from 20 March 2002 to 10 December 2003.

3.  A review of her military medical records shows she injured her back in a vehicle accident during her deployment to Kuwait.  No line of duty determination or accident report was filed in her medical record or on her personnel record maintained on the Interactive Personnel Electronic Records Management System (iPERMS). 

4.  On 21 March 2003 in Landstuhl, Germany she had a lumbosacral spine series of x-rays that show a normal lumbosacral spine based on routine views that revealed the vertebral bodies were of normal height with adequate maintenance of the intervertebral disk spaces.  There is no evidence of traumatic, neoplastic, or significant arthritic change.  There is no evidence of spondylolisthesis or spondylolistheses. 

5.  On 22 September 2005 an orthopedic physician assistant at Fort Carson, Colorado examined the applicant and indicated in his medical notes that she was given a "P2" profile.  The treatment records related to her back and neck problems show treatment for spasms in the muscles of her neck and back with intermittent complains of numbness and pain on movement and tender on palpation.  In reviewing the medical progress notes she provided there is no evidence a physical profile was reviewed and approved by appropriate authorities.  Her profile is not filed in her iPERMS record.  

6.  On 15 December 2005, her medical record shows she was seen at Fort Gordon, Georgia for an MEB referral for chronic neck and low back pain.  Concerning the MEB physical evaluation and its associated narrative summary, it is presumed one occurred though it is not found in the medical evidence she provided or in her record maintained on iPERMS.  

7.  On 7 February 2006 an MEB convened that found her medically unfit due to chronic mechanical or myofascial neck and lower back pain.  The applicant concurred with the MEB and her case was referred to a PEB. 

8.  On 17 February 2006, a revised PEB found the applicant unfit for continued service due to cervical strain associated with chronic neck pain, without neurologic abnormality.  Her combined cervical range of motion was greater than 335 degrees.  This condition was rated at 10 percent disabling.  Her second unfitting condition was lumbosacral strain again associated with chronic low back pain, without neurologic abnormality.  This second condition was rated at 10 percent disabling.  Her thoracolumbar range of motion was 240 degrees.  Her combined rating was 20 percent.  The PEB recommended separation with severance pay.  The applicant concurred with the PEB findings and waived a formal PEB hearing.

9.  Accordingly, the applicant was honorably discharged with severance pay on 6 May 2006 after completing 5 years, 11 months and 15 days of creditable service.

10.  The military medical records provided by the applicant show she had some problems early on in her pregnancy but by the time of her MEB/PEB her pregnancy was described as normal.  There is no evidence in her available military medical records to support her contention that she was on bed rest at the time of her MEB/PEB.  

11.  Her post-service medical records start in 2006.  The early records relate to conditions not found in the military medical records and the list of complaints increased over the ensuing years to include diagnoses of or treatment for her back and neck pain, migraines, stress related anxiety, anxiety disorder, attention-deficit/hyperactivity disorder, tobacco use, sleep apnea, a malignant neoplasm in her breast, lumbago, vaginitis, hip pain, allergic rhinitis, hemorrhoids, sinusitis, weight control, eczema, and marital counseling.  A review of her Department of Veterans Affairs (VA) medical records does not show she was rated by the VA but that she received medical treatment for the aforementioned conditions. 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  

	a.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the Soldier’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a Soldier is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Soldiers who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Soldiers who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 

	b.  Paragraph 3-2b (processing for separation or retirement from active duty) states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  
		
13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, or appointment, separation and retirement.  Once a determination of physical unfitness is made, disabilities are rated using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. 

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of a permanent physical profile.  The key element in the disability system is the presence of medical condition(s) that renders a Soldier unable to reasonably perform the duties required of his/her grade and military specialty.  Based on her chronic back and neck pain, her medical records show she was referred to an MEB which found those conditions did not meet retention standards.

2.  The applicant states the MEB failed to address several other conditions and that it was completed incorrectly and improperly; however, she does not state what those conditions may have been or provide evidence to show it was completed incorrectly or improperly.  

3.  The applicant's list of medical complaints has grown since her discharge.  She has not provided any evidence to show she received medical treatment for the additional medical conditions during her period of active service or that these additional medical conditions were part of her permanent profile which would have warranted review by an MEB.  As these conditions were not reviewed by the MEB, they could not be referred to a PEB.

4.  Concerning her disability rating, the applicant has not provided and the record does not contain any evidence to support her contention that her back or neck conditions were more severe than recorded on the PEB.  In addition, the applicant had the right to appeal the PEB and request a formal hearing.  The record shows she waived her right to a formal hearing; thus, it appears she agreed with the 20 percent disability rating and entitlement to severance pay.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20150001270



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ABCMR Record of Proceedings (cont)                                         AR20150001270



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