PROCEEDINGS   

	IN THE CASE OF:       

	BOARD DATE:           13 MARCH 2003                  
	DOCKET NUMBER:   AR2002077520

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Pagan		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John A. Kelley		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of her application to correct her military records to reflect physical disability retirement or separation.

3.  The applicant states that she had previously forwarded all her medical records to this Board; however, they were never acknowledged in the Board proceedings.  She was not afforded a Physical Evaluation Board.  She has appealed the 1999 Board decision to Board members, without response.  She submitted the entire packet last year [2001].  She is willing to discuss the incorrect diagnosis given, “lower back pain.”  She states that the VA stated that it was up to the Board to refund the money [her medical expenses].  The applicant submits a copy of a 5 June 2002 memorandum from a medical officer at the Army Aero- Medical Center at Fort Rucker, Alabama, to the Army Medical Command at Fort Sam Houston, Texas, in which that officer requested designee status for one year for the applicant or until the decision by this Board.  That doctor stated that the applicant had chronic pain, took regular pain medicine, and required physical therapy on a regular basis.  He stated that she wanted to pursue a medical disability request through this Board.  He stated that the applicant had a muscular disorder causing pain in the affected muscle groups and thoracic facet joint dysfunction.  The applicant also submits copies of documents showing the medications she is taking.    

4.  The Memorandum of Consideration (MOC) of the Board’s 22 April 1999 review of the case (AR1999020670) is incorporated herein by reference as if wholly set forth.  Also included is the Board’s 10 March 2000 response to her request for reconsideration, and the 24 April 2002 response to her requests for reconsideration.

5.  The applicant’s submission is new evidence that requires Board consideration.

6.  On 22 April 1999 this Board determined that her medical records be corrected to show that she incurred muscle spasms and/or mechanical low-back pain while on active duty, and that her DD Form 214 be corrected to show that she was discharged because of Entry Level Status Performance.  In so doing, the Board concluded that her back condition did not exist prior to her entry in the service and that she did meet procurement medical fitness standards at the time she entered on active duty.  The Board, however, also concluded that she did meet the retention fitness standards and did not meet the criteria for referral to a Physical Evaluation Board (PEB).  Nonetheless, the Board further concluded that she could not successfully complete her training due to her inability caused by her back condition.    

7.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

8.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

9.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

10.  Congress established the VA Schedule for Rating Disabilities (VASRD) as the standard under which percentage rating decisions are to be made for disabled military personnel.  Percentage ratings in the VASRD represent the average loss in earning capacity resulting from diseases and injuries.  The ratings also represent the residual effects of these health impairments on civilian occupations.  VASRD Code 5295 provides for disability ratings ranging from     40 percent to zero percent for lumbosacral strain.  A 10 percent rating is awarded for characteristic pain on motion.  

11.  Army Regulation 635-40 states in pertinent part that not all of the general policy provisions of the VASRD apply to the Army, and that Section I of Appendix B replaces or modifies paragraphs of the VASRD.
  
12.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, Appendix B, paragraph B-39, intervertebral disc syndrome (Code 5293) and lumbosacral strain (Code 5295), provides that a 40 or 60 percent disability rating will be predicated upon objective medical findings of neurological involvement, e.g., loss of bladder or bowel control, or sensory loss in an extremity determined by pinprick testing.  Lesser ratings will begin with a zero percent rating for chronic low back pain of unknown etiology (mechanical low back pain).   Demonstrated pain on spinal motion or discovery of back pain etiology will warrant a 10 percent rating unless paravertebral muscle spasms are also present, in which case a 20 percent rating will be awarded.

13.  The above regulation provides for severance pay for soldiers with less than 20 years’ active service and a disability percentage of less than 30 percent; however, a soldier with less than 6 months’ service cannot receive severance pay.  The soldier may apply to the VA for disability compensation. 

14.  Army Regulation 635-40 provides for the separation for physical disability without severance pay and states that service of enlisted soldiers discharged by reason of physical disability normally with be characterized as honorable, or described as uncharacterized for those in entry level status.

15.  Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating soldiers from active duty, and the SPD codes to be entered on the   DD Form 214.  The separation code for a soldier discharged under the provisions of Army Regulation 635-40 for a physical disability with severance pay is “JFL.”      

CONCLUSIONS:

1.  The applicant obviously had a medical condition, and upon further review, in actuality it would have been more appropriate to consider the applicant for physical disability processing, that is, a Medical Evaluation Board, which could have determined her medical qualifications for retention, that is the seriousness of her back condition, and if appropriate, referral to a PEB.  

2.  This, of course, did not happen because of the determination made in 1997 that she did not meet the procurement medical fitness standards.  Consequently, and based upon the determination that her condition, now diagnosed as muscle spasms and/or mechanical low back pain, did not allow her to complete training, it would now be appropriate to correct her records to show that she was discharged in 1997 because of a physical disability in accordance with the provisions of Army Regulation 635-40.  

3.  An examination completed less than three weeks prior to her discharge shows that the applicant was in no acute distress and had no postural changes in her upper back.  She did have some tenderness in the mid-thoracic spine, but no upper thoracic or lower lumbar spine pain.  She was able to bend forward, placing her fingers to her toes with some pain in her mid-back.  Extension in the left and right bending did not give her a lot of pain.  She was able to heel walk and toe hop easily on both sides, and on seated exam.  She had adequate strength in all muscle groups of the lower extremities.  

4.  In his 3 March 1999 opinion to the previous Board, the Army Review Boards Agency medical advisor indicated that all radiologic studies subsequent to the applicant's discharge demonstrated that the applicant had an unremarkable, normal thoracic spine.  That officer opined that the true diagnosis of her condition was muscle spasms and/or mechanical low back pain, which was incident to her military training.

5.  The medical evidence indicates that the applicant had back pain.  The VASRD provides for a zero percent rating for low back pain of unknown etiology (mechanical low back pain) and a 10 percent rating for demonstrated pain on spinal motion.  It would appear that her condition at the time of her discharge in 1997 was conducive to a disability rating of 10 percent.  She had pain on motion. 

6.  The Board notes the 5 June 2002 medical opinion that the applicant had chronic pain, took regular pain medicine, and required physical therapy on a regular basis.  Nonetheless, this opinion is based on her current medical condition, not her medical condition in 1997.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  This Board is correcting her record to grant her physical disability separation with a disability rating based on her medical condition in 1997.  Despite her latest submission to this Board, and taking into consideration her previous applications and appeals, she has not provided any medical evidence to show that her condition in 1997 was such to warrant a disability rating in excess of 10 percent.  She is not entitled to physical disability retirement.  Because she had less than 6 months' service, she is also not entitled to severance pay.

7.  The applicant may take her case to the Department of Veterans Affairs.  That agency is separate and distinct from the Army disability system and makes its own decisions concerning entitlement to disability compensation and ratings.  The VA may rate any service-connected disability.  Army ratings are permanent. VA ratings may fluctuate depending upon the severity of the disability.    

8.  The applicant’s records should be corrected to show that she was discharged because of physical disability under the provisions of Army Regulation 635-40 with a 10 percent disability rating, and that she is not entitled to severance pay.  Her SPD code should reflect, “JFL.”  Because her DD Form 214 has once been corrected to change the authority and the reason for her discharge, in order to avoid confusion, it would be appropriate in this instance to issue her a new       DD Form 214 in lieu of issuing another correction to her 30 April 1997 form.           
9.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was discharged because of physical disability on 30 April 1997 under the provisions of Army Regulation  635-40 with a 10 percent disability rating, and that she is not entitled to severance pay.  Her SPD code should reflect “JFL.”  She should be issued a new DD Form 214 reflecting this information.  

2.  That so much of the application in excess of the foregoing be denied.

BOARD VOTE:

__TAP __  __RWA__  __JAK __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Thomas A. Pagan____
		        CHAIRPERSON

INDEX

CASE ID	AR2002077520	
SUFFIX		
RECON		
DATE BOARDED	20030313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.	108.00	
3.		
4.		
5.		
6.