MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 November 2000                  
	DOCKET NUMBER:   AR2000047747

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Terry L. Placek		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:  Reconsideration of his earlier appeal to correct his records by changing the reason for his separation from weight control failure to physical disability.

APPLICANT STATES:  In effect, his weight problem was caused by his inability to exercise due to his back problem and he was unable to perform his duty as a soldier because of his bad back.  He submits copies of in-service, Department of Veteran Affairs (VA) and civilian medical records to substantiate his case.  He reports that he was waiting for a formal hearing to present them.  He contends that he complained of back pain even before he reported for duty in Ohio and that this demonstrates that his back problem started before he was referred to the weight control program.  He cites a weight management sheet (which he says is dated August 1997) that shows his back problem as the reason for his inability to lose weight.  He contends that the Army doctor at Fort Knox, Kentucky who determined that he was physically qualified for the weight control program did not have the medical evidence from Walter Reed Army Medical Center to show that there was a physiological reason for his back pain.  Therefore that determination was invalid and his separation unjust.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case (AR1999025449) on 10 February 2000. 

The applicant’s submissions are new evidence that require Board consideration. 

The documents submitted by the applicant include: 

•	A 9 December 1996 endorsement concerning compassionate reassignment to the Columbus, Ohio recruiting battalion because of the Exceptional Family Member Program. 

•	A 31 January 1997 medical record page that describes symptoms of “chest flutters” sometimes with tingling in the left arm and left leg.  The diagnoses were palpitations that were unlikely to be cardiac symptoms, gastroesophageal reflux disease (GERD), and tingling that was probably job stress related but cervical spine films were to be ordered.

•	A 21 April 1997 memorandum initiating the applicant’s enrollment in the weight control program at his company commander’s request.  The health care provider’s endorsement states that the applicant’s overweight condition was not a medical problem and that the applicant could exercise in accordance with his temporary profile. 

•	The undated Weight Management Program Evaluation Form (which the applicant contends is dated August 1997) notes “LBP keeps him from exercising could be cause of inability to lose wt.”

•	The report of a 4 August 1997 emergency room visit with a complaint of back pain.  The document is largely illegible.

•	The report of a 12 August 1997 follow-up for back injury.  The applicant reported a history of back injury in 1981.  His back was tender to palpation over the L4-5 area.

•	A 27 August 1997 SF 600 showing that the applicant was seeking a referral to Spinal Center at Walter Reed Army Medical Center.  That consultation request states that the applicant reported a history of fracture of the L5 vertebra and spondylolysis (The breaking down (dissolution) of a portion of a vertebra. Spondylolysis can be a cause of abnormal movement of the spine (called spondylolisthesis) and lead to localized back pain] in 1981.  He reported that he had been boarded by a medical evaluation board in 1992, had returned to active duty in 1996 and had “no problems until 3 weeks ago” 

•	Temporary duty (TDY) travel orders to Walter Reed Army Medical Center for 4 days to proceed on 1 September 1997.  The 3 September 1997 evaluation at Walter Reed yielded a T3 profile and a recommendation to follow up in 6 months. 

•	The 5 September 1997 Fort Knox, Kentucky health care provider’s endorsement to the company commander’s 26 August 1997 memorandum initiating separation action under the weight control program states that the applicant’s overweight condition was not a medical problem.

•	An 8 September 1997 counseling statement to the effect that the applicant’s trips to the doctor and TDY travel to Walter Reed was hurting production.

•	The report of the radiological exam was transcribed on 10 September 1997 revealed a Schmorl”s node at L4-5 and no other abnormalities.  However the residual contrast fluid from a previous gastrointestinal fluoroscopic study obscured some of the views.  (Schmorl's node: An upward and downward protrusion (pushing into) of a spinal disk's soft tissue into the bony tissue of the adjacent vertebrae Schmorl's nodes are detectable with an x-ray test as a spine abnormality .  Schmorl's nodes are most common in the middle and lower spine.  Schmorl's nodes are common, especially with minor degeneration of the aging spine. Schmorl's nodes usually cause no symptoms, but reflect that "wear and tear" of the spine has occurred over time. Schmorl's nodes are a helpful x-ray finding as an indicator of degenerative process that may be affecting a patient's spine). 

•	A 25 September 1997 memorandum for the company commander detailing the applicant’s “Time Off Production since reporting.”  It lists leave, TDY, training and “hospital/quarters” periods.

•	A 4 May 1998 civilian orthopedic initial visit that produced an impression of possible disk herniation.  It notes the applicant had undergone previous multiple x-rays, a CAT scan and a myelogram.  He was to be scheduled for an MRI.  The 14 May 1998 MRI showed a left foramimal L4-L5 disc prolapse. (The nerves that provide sensation and stimulate the muscles of the low back as well as the lower extremities (the thighs, legs, feet, and toes) exit the spinal column through bony portals called "foramen”).  The disc prolapse was impinging the nerve outlet portal.

•	A 6 August 1998 VA “Compensation and Pension Exam Report” recorded the evaluation of the applicant’s condition.

•	An 11 November 1998 report of a L5 nerve root block procedure.

•	A 14 February 2000 peripheral nerve function test report indicating left L4 radiculopathy.

•	The report of a 10 March 2000 civilian back pain clinic examination recommends aggressive but non-operative management.

(Italicized medical terminology parenthetical remarks are from Medicinenet.com Medical Dictionary.)

Army Regulation 635-40, paragraph 3-2b(1), provides that 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 by a physical disability that was incurred or aggravated in service and they can no longer continue to reasonably perform their assigned duty. 

Army Regulation15-185 sets for the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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.  The applicant’s contentions and his documentation have been carefully considered.  However, there is no convincing evidence that his failure of the weight control program was wholly or largely due to his back problem.  There is one medical observation that states it might be.  The applicant was enrolled in the weight control program on 24 April 1997.  On 27 August 1997 he reported that he had experienced no reoccurrence of his pre-service back problems “until 3 weeks ago.”  

2.  The physician at Fort Knox did not have the report from the visit to the Spine Center at Walter Reed.  However, he clearly had the applicant’s verbal report, yet the doctor determined that the applicant’s weight problem was not medical in nature.  Furthermore, the Board notes that, as reported in the original MOC, the applicant consulted with counsel and waived his administrative discharge processing rights.  The applicant’s period of service was not interrupted by a disabling condition and he was not entitled to disability separation.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__SLP__  __TLP ___  ___MW _  DENY APPLICATION

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

INDEX

CASE ID	AR2000047747	
SUFFIX		
RECON		
DATE BOARDED	20001114	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.