MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2000                   
	DOCKET NUMBER:   AR2000042912

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

APPLICANT STATES:  That when he enlisted in October 1992, he had passed his entrance physical examination and passed all physical requirements upon arriving at Fort Benning, GA for training.  Three nights later he fell off his bunk and experienced lower back pain.  Three days later he went on sick call.  X-rays showed he had a congenital birth defect called a Grade 1 Spondylolysis with another condition known as Spondylolisthesis.  He told the physician he had never had back problems before.  He asked for a profile only until he finished therapy.  The Entrance Physical Standards Board (EPSBD) Proceedings, DA Form 4707, noted that he had a long history of back pain prior to entry on active duty.  He never said that.  On the DA Form 4707 he concurred with the proceedings but requested to be retained on active duty.  He wants to prove himself but the only way he can do that is to have his RE and separation codes waived.  He tried to enter the Reserve Officer Training Corps but the physician at the Military Entrance Processing Station (MEPS) denied him re-entry due to these codes.  He has recently seen a private physician who evaluated his health and strength-tested his back.  He is in excellent health.  Supporting evidence is highlighted in bold on the attachment to the DD Form 149.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 10 November 1992.  His enlistment Report of Medical Examination, SF Form 88, shows he had had a prior shoulder separation but no back problems.

On 18 November 1992, the applicant was diagnosed with Spondylolysis.  The consultation sheet noted that he had been a high school football and basketball player and that he asserted he never had a back problem before.  On                19 November 1992, he was given a permanent physical profile of no mandatory strenuous physical activity for a medical condition of congenital back defect and traumatic back defect.  On 16 December 1992, his medical condition was noted as Grade I Spondylolisthesis (forward displacement of one vertebra over another) and L5 Spondylolysis (dissolution of a vertebra).  On 16 December 1992, EPSBD proceedings found that he did not meet medical fitness standards for enlistment although he did meet retention standards and recommended his separation.  Section 8b of the DA Form 4707 noted that “SM has a long history of back pain prior to entry on active duty…”  On 17 December 1992, he was sent 

home in an excess leave status.  On 18 December 1992, the findings of the EPSBD were approved.  On 30 December 1992, the applicant concurred with the proceedings and requested that he be retained on active duty.

On 19 January 1993, the applicant was discharged, with an uncharacterized description of service, under the provisions of Army Regulation 635-200, paragraph 5-11 for not meeting procurement medical fitness standards.  He had completed 2 months and 10 days of creditable active service.  He was given a reentry code of 3.

On 8 January 1997, a civilian physician examined the applicant and found he had full active range of motion of the neck.  Good musculature was noted in both upper extremities.  Active range of motion was normal.  Flexibility, extension, flexion, and side bending of the spine were normal.  X-rays of the lumbosacral spine noted the applicant had Grade I Spondylolisthesis at L5-S-1.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 sets the policy and prescribes procedures for separating members who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entrance of active duty that would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and does not disqualify him or her for retention.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army  (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service but the disqualification is waivable.  

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program. 

Army Regulation 40-501 governs medical fitness standards for enlistment, retention and separation.  Paragraph 2-38 states that Spondylolysis that is symptomatic or likely to interfere with performance of duty or limit assignments, even if successfully fused, is a cause for rejection for enlistment. Spondylolisthesis is also a cause for rejection for enlistment.  Paragraph 3-39 states that Spondylolysis or Spondylolisthesis with more than mild symptoms resulting in repeated outpatient visits or repeated hospitalization or limitations affecting performance of duty are causes for referral to a medical evaluation board.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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.

2.  The physical examination the applicant took in 1997 still showed that he had Grade I Spondylolisthesis at L5-S-1, which shows that it was not a misdiagnosis on the part of the Army.  Had his condition been diagnosed at the time he completed his enlistment physical examination, he would not have been allowed to enlist as such a condition is cause for rejection for enlistment.  On the other hand, had his fall several days into basic training not precipitated further X-rays, the applicant might have succeeded in completing training without his defect being identified.  Then, had it later been identified, the condition may or may not have caused him to be found unfit for duty and he may or may not have been discharged.  

3.  The Army has more stringent enlistment medical fitness standards because training, both basic training and advanced individual training, are so strenuous.  The Army does this to protect the soldier and to protect their investment in their training of the soldier.  Enlistment criteria does change and the applicant has the right to apply for a waiver of his disqualification.  However, the Board acknowledges that as long as the enlistment medical standards for an individual with Spondylolisthesis do not change, the applicant will have difficulty obtaining a waiver.  The Board concludes that it is appropriate that MEPS medical examiners make the final medical determination concerning his fitness for enlistment.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf___  __fe____  __cjs___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042912	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.