MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 December 2001                   
	DOCKET NUMBER:   AR2001063133

	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. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Harry B. Oberg		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:  That the narrative reason for his separation be changed.

APPLICANT STATES:  That his Certificate of Discharge or Release from Active Duty, DD Form 214, states that he was separated for failure to meet procurement medical fitness standards.  The Department of Veterans Affairs (VA) has determined that the real reason for his discharge was a disability connected to military service.  Unless the reason for discharge is changed, he cannot draw Montgomery GI Bill benefits.  He provides his enlistment physical examination documents, his Entrance Physical Standards Board (EPSBD) Proceedings, his DD Form 214, and his VA Rating Decision as supporting evidence.

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

He enlisted in the Regular Army on 2 August 1994.  His enlistment physical examination did not note any problems with the spine or other musculoskeletal areas.  He completed 15 weeks of English as a Second Language training and was in his third week of basic training when he was evaluated for a complaint of low back pain since November 1994.  He had been treated by a civilian physician during exodus who diagnosed him with myositis (inflammation of a voluntary muscle).  X-rays revealed a mild narrowing at the L4-5 disc.  He was diagnosed with chronic low back pain with mild narrowing L4-5 lumbar vertebrae, existed prior to service (EPTS).  It was recommended he be separated for failing to meet medical procurement standards.  On 18 January 1995, the applicant disagreed with the proceedings, contending his condition was not EPTS.  His appeal was considered and the original findings and recommendations were confirmed.

On 9 February1995, the applicant was discharged for failing to meet procurement medical fitness standards after completing 6 months and 8 days of creditable active service. 

In August 1995, the VA granted the applicant a 20 percent disability rating for a herniated nucleus pulposus at T-12-L1.  The VA noted that the Army’s diagnosis was in error and that based up VA X-rays the T12-L1 posterior focal disc protrusion was causing minimal compression upon the anterior aspect of the dural sac could be a cause of his low back pain.  There was substantial doubt as to the service origin of this condition but it was resolved in favor of the applicant.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 3-3 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples of these conditions include scars, supernumerary parts, congenital malformations and hereditary conditions and similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service. 

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  

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 acknowledges the applicant’s argument that no back condition was revealed when he completed his enlistment physical examination.  However, enlistment physical examinations are not comprehensive.  X-rays are taken, but they are chest X-rays and not designed to look for back anomalies.  The Board notes that service X-rays revealed mild narrowing, a subjective finding.  VA       X-rays revealed minimal compression upon the anterior aspect of the dural sac, another subjective finding.  The Board also notes that a civilian doctor diagnosed him with myositis.  

3.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Even the VA noted that there was substantial doubt as to the service origin of the applicant’s condition.  They resolved it in favor of the applicant, which is within their policy guidance to do so.  However, any rating action or service-connection finding by the VA does not demonstrate an error or injustice on the part of the Army.

4.  The Board presumes that the EPSBD considered their diagnosis of the applicant’s back condition, a mild narrowing at the L4-5 disc, was a condition in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation was needed to support the conclusion that it existed prior to military service.  The Board presumes that the difference between the Army’s diagnosis and the VA’s diagnosis was merely a subjective difference of medical opinion which does not negate the Army’s diagnosis.  In either case, the applicant has failed to provide sufficient evidence which would disprove the EPSBD’s findings.

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

__fne___  __tap___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063133	
SUFFIX		
RECON		
DATE BOARDED	20011206	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.