MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:          12 March 2002                    
	DOCKET NUMBER:  AR2001060500

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gail J. Wire		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, reconsideration of his Physical Evaluation Board (PEB) findings by reevaluating his medical condition for a higher disability rating that he claims was overlooked, receipt of back pay, entitlements and separation benefits. 

APPLICANT STATES:  In essence, that the PEB denied and/or excluded the following documented “illnesses”: lack of sleep (insomnia), loss of hearing, severe back and neck spasms (muscles), arthritis (spinal), cervical spine strain, and leg pain with weakness, degeneration, numbness and tingling, thereby reducing his physical disability rating.  The applicant has submitted three 
DD Form 149 (Application for Correction of Military Record) in support of his claim.  The first two are dated 30 July 2001 and the final form is dated 
26 October 2001. 

COUNSEL CONTENDS:  That the Board, should apply a more appreciated rating found under VA code 5293, that would allow for a 40% evaluation.  Further counsel, also points out that applicant believed he was waiting for a decision from the PEB from 19 October 1997 to 7 June 1999, and that time should be counted as active duty.  Counsel therefore requests that the Board give careful and sympathetic consideration to all the evidence of record used in rendering a fair and impartial decision.  Further counsel maintains that these issues do not supersede any issues previously submitted by the applicant.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized as noted in the original Memorandum of Correction prepared to reflect the Board's previous consideration of the case (AR2000049411) on 17 April 2001.

The applicant’s contentions are new argument that requires Board consideration.
The medical evidence of record indicates that the applicant had a long history of medical treatment for the following: complaints of pain in the right hip and waist  resulting from “being flipped during self defense” training in May 1993; for medical treatment on 14 June 1993 after a three mile run; and treatment for pain of lower back pain in October 1997, for which he received a physical profile that also recommended surgical correction of his back problem, which the applicant agreed to have after graduating from training.  After he completed his training, he was assigned to Fort Belvoir, Virginia, for duty, at which time he declined surgery due to several surgical risk factors.  His condition and prognosis as reported by the medical evaluation board showed that he continued to experience severe back pains.  He was unable to stand or sit for prolonged periods, run, wear a Kevlar helmet, jump, road march, or lift greater than 10-20 lbs without exacerbating his pain.  He also reported having trouble sleeping.  

Given the chronicity of his symptoms and failure to show significant response to treatment, the medical board opined that the prognosis for significant recovery was poor.  He was medically diagnosed with (1). Grade II Spondylolisthesis (forward movement of one of the spine vertebra in relation to an adjacent vertebra).  (2). Bilateral L5 Spondylolysis (the breaking down of the spine vertebra) and (3). Chronic Right L5-S1 Radiculopathy (any disease of 
the spinal nerve roots and spinal nerves).  Medical review determined that the applicant no longer met the retention standards as set forth in Army Regulation 40-501 paragraph 3-39a(3) and referred him to the PEB.  There is no indication that the applicant addressed any of the above “illnesses” with a rebuttal to the initial medical evaluation board, although the doctor pointed out that he reported having trouble sleeping. 

On 11 February 1999, he was found medically unfit by an informal PEB.  His record also shows that on 3 March 1999, he submitted a rebuttal to the PEB findings.  The applicant’s record does not include a copy of the rebuttal or any other documentation which shows that he addressed the “illnesses” to the PEB as additional unfitting conditions to be considered for a higher disability rating.  An undated hand written summary sheet was included in his record.  It briefly outlines his military history and his medical treatment history, which began in May 1993 when he fell on his back in basic training.  It notes his continued back pain, despite therapy, and tingling in his lateral right ankle and his toes, although he did not have these symptoms on the day of his patient summary.  The summary also points out that the applicant felt that he deserved more than a 20% rating and was looking for “help” from the evaluation committee. 

On 17 March 1999, the President of the Washington PEB determined that the applicant’s rebuttal provided no new substantive medical information not previously considered in his prior physical evaluation board.  On 29 March 1999, the formal PEB affirmed the decision of the informal PEB.  

On 7 June 1999, the applicant was discharged from the U.S. Army Reserve by reason of a physical disability rated at 20 percent with entitlement to severance pay.  

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one 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 with 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.  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 Board notes counsel’s contention that the PEB rated the applicant under a different VA Code.  However, the Board found that the PEB exercised full consideration based on a through evaluation of the applicant’s medical condition, treatment history and time in service prior to making their final decision.  In addition, the PEB also provided ample opportunity for the applicant to address the evaluation process.  Therefore, the Board finds no error in the decisions rendered by the PEB.  

3.  The applicant’s discharge from the U.S. Army Reserve, by reason of physical disability with entitlement to severance pay of 20%, was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.

4.  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.

5.  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

____INW   _RJW___  ___GJW_  DENY APPLICATION

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

INDEX

CASE ID	AR2001060500	
SUFFIX		
RECON	2002.03.12	
DATE BOARDED		
TYPE OF DISCHARGE	DISABILITY 	
DATE OF DISCHARGE	1999.06.07	
DISCHARGE AUTHORITY	635-40	
DISCHARGE REASON	UNFIT FOR ARMY NATIONAL GUARD 20%	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	AR124.0400	
2.	AR124.0100	
3.	AR124.0800	
4.		
5.		
6.