Application Receipt Date: 070427	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 with eighteen (18) enclosures. 

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 050721
Discharge Received:     Date: 060224   
Chapter: 4-24B(4)    AR: 635-40
Reason: Disability, Existed Prior to Service, Physical Evaluation Board (PEB)
RE:     SPD: JFM
Unit/Location: HQ & HQ Battalion, Division Artillery, Baumholder TC, Germany, APO, AE  09034 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  740119  
Current ENL Date: 950508    Current ENL Term: Indefinite Years  ?????
Current ENL Service: 7 Yrs, 9 Mos, 17 Days ?????
Total Service:  7 Yrs, 9 Mos, 17 Days ?????
Previous Discharges: None
Highest Grade: CPT
Performance Ratings Available: Yes    No 
MOS: 13A Field Artillery   GT: NA   EDU: College Grad   Overseas: Germany/Southwest Asia   Combat: Iraq (030506-040610)
Decorations/Awards: ARCOM, AAM (2), MUC, NDSM, GWOTSM, ASR, OSR, Iraq Campaign Medal
V.  Post-Discharge Activity
Home of Record: 
Current Address:
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 20 July 2005, by direction of the appointing authority, a medical board convened to evaluate the applicant.  The applicant was present during the proceedings.  The applicant did not present any views in his behalf.  After careful consideration of clinical records, laboratory findings, health records, and medical examination, the Medical Evaluation Board diagnosed the applicant with a medical condition that made him unfit to perform his military duties and referred him to a Physical Evaluation Board (PEB).  The findings and recommendation of the board was approved.  on 21 July 2005, the applicant agreed with the board's findings and recommendation.  On 2 September 2005, the Physical Evaluation Board convened.  The board considered the applicant's condition described in the records.  The Physical Evaluation Board concluded that there was sufficient evidence to substantiate an EPTS (existed prior to service) condition for which he was unfit, and that his condition was not permanently aggravated by service, but was the result of natural progression.  The Physical Evaluation Board further advised the applicant that EPTS conditions are not compensable under Army Physical Disability System, the proper disposition is separation from the Army without entitlement to disability benefits.  The applicant's disability is not compensable under Title 10 of the US Code, but he may be eligible for benefits administered by the Department of Veterans Affairs (VA) under Title 38 USC.  On 12 September 2005, the applicant did not concur with the Physical Evaluation Board and demanded a formal hearing with personal appearance.  On 15 September 2005, the applicant was notified to appear before the Washington Army Physical Evaluation Board (PEB), and advised of his rights.  On 6 October 2005, the applicant acknowledged that he was counseled on his legal/procedural rights.  On 7 October 2005, the Physical Evaluation Board (PEB) met, and applicant appeared with counsel.  The Physical Evaluation Board reviewed the medical evidence of record and concluded that there is sufficient evidence to substantiate an EPTS (existed prior to service) condition for which the applicant was unfit, and that his condition was not permanently aggravated by service, but was the result of natural progression, and recommended that the applicant be separated from the service without entitlement to disability benefits.  On 21 October 2005, the applicant did not concur and submitted a statement of rebuttal.  On 21 October the Washington Physical Evaluation Board received the applicant's letter of rebuttal dated 21 October 2005 in reference to his formal hearing held on 7 October 2005.  On 2 November 2005, DA, US Army Physical Evaluation Board, Walter Reed Army Medical Center, Washington, DC, President, COL, IN, stated that the applicant's rebuttal letter he did not provide information as to any new diagnosis or changes in his currently rated disability, and the Board affirmed the decision of the formal hearing that found him unfit.  Based upon that review, the Department of the Army, US Army Physical Evaluation Board, (WRAMC), Washington, DC, found no basis for a change in its action in reference to the applicant's case and reaffirmed its previous findings, and forwarded the case to the US Army Physical Disability Agency for review.  On 7 November 2005, the US Army Physical Disability Agency reviewed the applicant's case, and concluded that his case was properly adjudicated by the Physical Evaluation Board which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination.  The findings and recommendations of the Physical Evaluation Board was supported by substantial evidence and was therefore affirmed.  The applicant was further advised that he may be eligible for medical care through the Department of Veterans Affairs (DVA) if they determined that his illness or injury was service connected.  On 28 November 2005, the applicant submitted a Memorandum for the Commander, US Army Physical Disability Agency, Walter Reed Medical Center, Washington, DC, requesting a new Formal Physical Evaluation Board due to critical errors and omissions.  On 30 November 2005, the DA, US Army Physical Disability Agency, Walter Reed Army Medical Center, Washington, DC, LTC, AG; Chief, Operations Division, stated that the applicant's request for a formal hearing was reviewed, along with his enclosures and the entire case file.  The applicant's request for a new hearing or a change to the Physical Evaluation Board findings was denied, and the case was considered closed and forwarded for final administrative action.   On 11 January 2006, the applicant submitted a letter to the Commander, US Army Physical Disability Agency, Walter Reed Medical Center, Washington, DC. requesting a review of his complete Physical Evaluation Process due to critical errors and omissions.  On 26 Janaury 2006, DA, US Army Physical Disability Agency, WRAMC, Washington, DC, LTC, AG, Chief, Operations Division, acknowledged the applicant's letter dated 11 January 2006, requesting a review of the disability findings.  The US Army Physical Disability Agency again reviewed the applicant's case file and considered his claims of error.  On 30 January 2006, DA, HQ, 1st Armored Division, Unit 24309, APO, AE, LTC, MC, Division Surgeon, requested that the Physical Evaluation Board be withdrawn and re-submitted with a comprehensive and factual Narrative Summary of the applicant's disease process and evaluation.  On 3 February 2006, DA, HQ 1st Armored Division, Unit 24309, APO, AE, LTC, MC, Division Surgeon, again requested a Quality Review of the Physical Evaluation Board findings under paragraph 2-4e and f, of AR 635-40, and consideration be given to grant the applicant a new Medical Evaluation Board with a corrected Narrative Summary and review by a new Physical Examination Board to avoid prejudicial bias from previous erroneous information.  On 9 March 2007, DA, Army Review Boards Agency, 1901 South Bell Street, Arlington, VA, Acting Deputy Assistant Secretary (Army Review Boards) informed the applicant by letter that the Army Disability Review Board (ADRB) convened on 20 February 2007, under the provisions of Title 10 United States Code Section 1554 and 32 Code of Federal Regulations Section 5881.1 to review his petition.  After carefully reviewing all available records previously submitted and the new evidence the applicant provided, as well as his testimony, and that of his representatives, the Board voted unanimously to deny his request that he be medically retired from the United States Army.  The Board also voted unanimously to deny his claim that there was significant service aggravation to his condition, and to deny making the statement that your illness was service connected.  Furthermore, the Board affirmed the findings of the Physical Evaluation Board (PEB) of October 7, 2005 and the United States Army Physical Disability Agency (USAPDA) review of November 7, 2005.  In closing, it was determined that the applicant received a full and fair hearing and the proceedings conformed to current laws and regulations.  

      b.  Legal Basis for Separation:  
      Army Regulation 635-40 sets forth the basic authority for the physical evaluation of personnel for retention, retirement, or separation.  Chapter 4 of that regulation provides, in pertinent part, that a member who will be separated for physical disability, subsequent to a final decision of the U.S. Army Physical Disability Agency or ADAB.  Appendix E of AR 635-40 (Personnel Processing Actions) states that the characterization of service for enlisted personnel discharged for physical disability normally will be characterized as honorable or described as uncharacterized for those in an entry level status.  
      
      c.  Response to Issues, Recommendation and Rationale:  
      After a careful review of all the applicant’s military records, supporting documents, and the issue he submitted, the analyst found no mitigating factors that would merit a change to the applicant's narrative reason for discharge.  The proceedings of the Enlistment Physical Standards Board (EPSBD) revealed that the applicant had a medical condition that was disqualifying for enlistment and that it existed prior to entry on active duty.  Subsequently, these findings were approved by competent medical authority.  The applicant agreed with these findings and the proposed action for administrative separation from the Army.  The narrative reason for separation is quite clear and is governed by specific directives.  The applicant was discharged under the provisions of paragraph 4-24B (4), AR 635-40, with a corresponding separation code (SPD) of JFM.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Disability, Existed Prior to Service, Physical Evaluation Board (PEB)."  There is no provision for any other reason to be entered under this regulation.  Furthermore, there is no evidence in the records that the command's action was erroneous, or that the applicant was not provided due process throughout the separation proceedings.  The analyst was satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected through the separation process.  In view of the foregoing, the analyst determined that the narrative reason for discharge was both proper and equitable.  

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: ?????              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: ?????

Witnesses/Observers: ????? 

Exhibits Submitted: ?????

VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change ?????    No change ?????   - Character
		 			      Change ?????    No change ?????   - Reason
					      (Board member names available upon request)

IX.  Board Discussion, Determination, and Recommendation
?????

Case report reviewed and verified by: Mr. Ron Williams, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: ?????
Other: ?????
RE Code:  
Grade Restoration:   No   Yes  Grade: ?????

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 

MARY E. SHAW				DATE: ?????
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070010168

Applicant Name:  Mr.       
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