PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  20 November 2003
	DOCKET NUMBER:  AR2002082322

	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	
	Ms. Joyce A Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		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, in effect, that his honorable discharge be changed to show that he was retired by reason of physical disability with full benefits.

3.  The applicant states that he was awarded a 60 percent disability rating by the Department of Veterans Affairs (VA) for one condition and 10 percent for another condition after his separation.  He was informed that he was unfit for deployment due to medical reasons.  In support of his application, he submits a copy of his DD Form 214 and a copy of his VA Rating Decision, dated 19 November 1997.

4.  The applicant’s military records show that he enlisted in the Washington Army National Guard (WAARNG) on 9 September 1985, as a motor transport operator (88M).  He was promoted to sergeant (SGT/E-5) on 29 August 1989.  He reenlisted in the WAARNG on 26 September 1990.

5.  He was ordered to active duty (AD) in the Active/Guard Reserve (AGR) Program on 27 September 1990 for a period of 3 years.  

6.  His medical records show that in the fall of 1991, while performing physical training, the applicant experienced low back pain that was continuous.  At that time, his pain did not radiate to his lower extremities nor did it have any other associated symptoms.  He underwent physical therapy, was prescribed nonsteroidal anti-inflammatory medications with Motrin, and was issued temporary physical profiles. 

7.  On 13 November 1991, the applicant had a Magnetic Resonance Imaging (MRI) that revealed a small central L5-S1 herniated nucleus pulposus (HNP) (rupture or prolapse of the nucleus pulposus into the spinal canal).  

8.  On 2 September 1993, his period of AD was extended for a total period of      6 years and 26 days.

9.  On 30 September 1993, the applicant was issued a permanent physical profile of 113111 due to chronic low back pain with small central HNP at L5-S1.  His Army Physical Fitness Test (APFT) was limited to the walk, swim, bicycle, and push-ups.  It also indicated that his permanent change in physical profile did not require a change in his military occupational specialty (MOS) and duty assignment.

10.  On 2 August 1994, his unit commander requested that a medical evaluation of his P3 profile for retainability and deployability be conducted.

11.  On 7 December 1994, the applicant underwent a Medical Evaluation Board (MEB) medical evaluation.  He was diagnosed as having low back pain; severity was moderate; left L5 radiculitis (inflammation of the root of a spinal nerve, especially of that portion of the root which lies between the spinal cord and the intervertebral canal), mild, which had improved by 40 percent over the past 2 years; an L5-S1 small central disk herniation with degenerative disk disease, which may contribute to both diagnoses; and amblyopia (dimness of vision without detectable organic lesion of the eye), right eye, existed prior to service (EPTS), and not service aggravated.  He was found qualified for active duty with a 113121 profile.  

12.  On 10 March 1995, the applicant's case was considered by an MEB.  The MEB concurred with the diagnoses of the applicant's MEB medical evaluation.  The MEB indicated that continuance on active duty under the provisions of Army Regulation 635-40 was not medically contraindicated.  The findings and recommendations were approved, and the applicant was referred to a Physical Evaluation Board (PEB).  The applicant concurred with the MEB's findings and recommendations. 

13.  On 7 April 1995, the applicant's case was considered by an informal PEB.  On 20 April 1995, the PEB found the applicant fit for duty and recommended that he be returned to duty.  The applicant nonconcurred and demanded a formal hearing with personal appearance.  After consulting with counsel, he waived his right to a formal hearing and accepted the informal findings of the PEB on 10 May 1995.

14.  On 31 May 1995, the Chief, Physical Disability Branch, US Total Army Personnel Command (PERSCOM) approved the findings of the PEB.  He stated that the applicant was determined fit for active duty and was found physically fit to perform the duties of his office, grade, rank, and MOS in accordance with physical profile and assignment limitations.

15.  On 17 June 1996, the applicant's commander requested a Medical Duty Review Board (MDRB) on the applicant.  The bases for the MDRB were the applicant's medical condition, affect on duty performance and attendance, and the restrictions recommended by his health care provider.

16.  He was honorably released from active duty on 1 October 1996, in the rank of SGT, due to completion of required active service.  He was transferred to the WAARNG.

17.  On 4 February 1997, orders were published reducing the applicant from SGT to private first class (PFC/E-3), effective 31 January 1997, due to misconduct.

18.  On 13 May 1997, the applicant was relieved from his duties as a motor transport operator (88M) and was assigned administrative duties in MOS (71L10).

19.  On 9 July 1997, the applicant underwent a VA medical examination.  He reported continuing problems with his back and was currently performing light duty at a boat factory.  His examination revealed tendon reflexes that were 2+ at patella and Achilles, full motor strength, and he could heel/toe walk, normal peroneal motor and sensory study of the left leg, and no electrodiagnostic evidence of radiculopathy of left leg.  There was no evidence of any disabling urinary problems.  His back muscles and spasm were noted.

20.  On 7 August 1997, the command concurred with the recommendation of the applicant's commander to have the applicant considered by a MDRB.  

21.  On 8 October 1997, the State Adjutant General (AG) requested medical documentation for review by the State Surgeon General.

22.  He was promoted to specialist (SPC/E-4) effective 10 January 1998.

23.  On 7 February 1998, the commander requested once again through channels that the applicant be evaluated per original request.  The applicant's commander stated that his duty performance had been carefully evaluated over the past months and it had been determined that his condition adversely affected his duty performance.  His commander recommended that he be honorably discharged due to his inability to perform his duties in MOS 88M.

24.  The applicant filed a claim with the VA for his service-connected disability.  On 19 November 1997, he was granted:  60 percent disability rating for L5-S1 central disc herniation with degenerative disc disease, chronic low back pain, 10 percent for left leg radiculitis and sciatica secondary to lumbar disc disease;   0 percent for bladder incontinence, urgency; 0 percent for bilateral hearing loss;  0 percent for residual of right index fracture; 0 percent for ventral hernia; 0 percent for tension headaches; and a combined rating of 60 percent for his service connected conditions.

25.  On 17 February 1998, the State AG determined that the applicant was not qualified for continued service in the WAARNG under the provisions of Army Regulation 40-501, chapter 3, paragraph 3-39(c).  He was informed that he may appeal by forwarding record of proof from his private physician that the disqualifying condition no longer exists or the corrective medical procedures were scheduled to correct this situation.  The Military Personnel Officer (MPO) and the State Surgeon General would review this information.  He was also informed that he may request that the National Guard Bureau (NGB) Surgeon review his case. 
On 7 April 1998, the State AG requested that proof be received or separation procedures would be accomplished.  There is no evidence of record that the applicant appealed the separation action.

26.  He was honorably discharged from the WAARNG on 30 April 1998, under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26j(1), for being medically unfit for retention.  He was separated in the pay grade of E-4 and completed 13 years, 3 months, and 22 days of creditable service.

27.  The applicant’s records contain a copy of his National Guard Retirement Points History Statement, dated 29 May 1998, which shows that he had completed 12 years of qualifying service for retirement purposes.  

28.  In the processing of this case an advisory opinion was provided by the US Army Physical Disability Agency (PDA).  The PDA reiterated the evidence formerly discussed and stated that on 15 May 1997, Department of Defense (DOD) Directive 1332.18 and DOD Instruction (DODI) 1332.38 became effective. These new provisions provided a right to Reserve members to request a PEB for a fitness for duty determination for their non-duty related impairments.  (Before this date there was no right for a Reservist with non-duty impairments to have a PEB determine their fitness for duty).  The detailed procedures were not implemented until 1 July 1998.  The PDA believed that it was doubtful that the applicant was advised of his right and his unit probably did not know of it either.  Nonetheless, the PDA stated that the applicant should have had the option of requesting referral to a PEB and it appears he was never probably counseled concerning his rights in 1998.

29.  The PDA stated, in effect, that if the applicant had been considered by a PEB after he was released from active duty, the PEB would have probably considered his medical condition to be non-service related.  As such, the PEB would only have determined fitness for duty, not percentage of disability.  In other words, if the applicant was sent to a PEB for review, and if his impairment continued to be classified as nonduty-related, such review could only determine fitness for duty, and not compensation.  If he had been confirmed as unfit by a PEB, the case would have been returned to the ARNGUS for continuation of his nonduty-related medical separation.  If found fit, the medical separation action would have been voided.  A review of the medical data (1995 MEB/1997 VA examination) revealed little difference in the physical findings.  The only real change in this case file is that in 1997/1998 there was a slight increase in the applicant's profile restrictions and the commander's statement indicated that he could not perform 88M duties.  The 1997 medical data shows a painful back, but 
it certainly does not provide physical findings of any significance and it certainly  

does not provide physical findings of any significant worsening of the condition from the 1995 fit findings.  Based on the physical data only, a PEB could have very well, again, found the applicant fit for duty.  However, based on the restrictive profile and commander's comments, a PEB would have likely found the applicant unfit.  If so, the case would have been returned to ARNGUS for continuation of his medical separation.

30.  The PDA noted that the applicant's unit considered his back pain to be nonduty-related and was processed that way.  There was no initial Line of duty (ILOD) for his back pain and the case file did not contain any documentation that the applicant ever:  Requested a LOD; appealed the medical separation action, or, submitted additional documents as provided in his rights advisement contained in the 17 February 1998 disqualification memorandum.  However, even though there is no LOD in the applicant's case file for his back impairment, the case file would appear to support the position that the applicant's back impairment originated on active duty and that he had no break in military service at that time. Accordingly, it would appear that the applicant's case should have been referred to a duty-related PEB.  Since the applicant would have most likely been found unfit, the only remaining issue would be the amount of the rating compensation.  The applicant requests medical retirement (at least 30 percent) and cites his 1997 VA Rating as supporting evidence.  His VA rating was carefully reviewed and based on the available evidence and service regulations, a 60 percent rating could not be supported.

31.  The applicant's back impairment should have been rated under the Veterans Administration Schedule of Rating Disability (VASRD) Code 5293, Intervertebral disc syndrome.  Ratings of 40-60 percent can only be awarded upon objective neurological findings supported by laboratory data.  A review of the 1995 and 1997 medical data show no such objective medical findings and there could not have been any rating for 40 or 60 percent for his unfitting back pain.  A 20 percent rating is the highest rating possible under this code for the applicant's impairment.  The applicant may have been ratable under 5295, lumboscaral strain, but only at 10 percent.  The applicant would not have warranted any higher rating under this code as his spasms were not "chronic and evident on repeated examinations."  Ratings for back pain alone would be limited to a maximum of 20 percent.  The applicant's left leg radicultis would not have been found independently unfitting and would not have been rated.  

32.  The PDA concluded that the applicant should have had a fitness for duty PEB before he was medically separated from the ARNGUS and a PEB held in 1998 would have most likely found the applicant unfit for duty because of this back pain and rated at 20 percent, under VASRD Code 5293, and separated with severance pay.  There would have been no other unfitting conditions or other ratings.  The PDA recommended that the applicant's records be changed to reflect that in 1998 he was medically separated from the military for intervertebral disc syndrome at 20 percent, separation with severance pay.

33.  The applicant was provided a copy of this opinion for possible comment prior to consideration of this case but no response was received.

34.  NGR 600-200 governs procedures for enlisted personnel of the Army National Guard.  Paragraph 8-26 covers reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG.  Subparagraph 8-26j(1) pertains to medically unfit for retention standards of chapter 3, Army Regulation 40-501.

35.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical
designations (1-4) are used to reflect different levels of functional capacity in six 
factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower
extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to 
possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military
duty.

36.  Army Regulation 40-501 provides policy on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 3 lists the various medical conditions and physical defects that may render a soldier unfit for further military service.  Paragraph 3-39(c) states that herniation of nucleus pulposus is cause for referral to an MEB.
37.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

38.  Title 10, US Code, section 1201, provides for the physical disability retirement of an unfit member who has at least 20 years of service or a disability rating of at least 30 percent.

39.  Army Regulation 635-40 applies to Active Army, the Army National Guard, and the US Army Reserve.  Paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration 
of physical condition, occurring immediately prior to, or coincident with separation, rendered the member unfit.

40.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) upon the final decision of the Physical Disability Agency (PDA).  It states that PERSCOM will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to the United States Army Physical Disability Agency (USADPA) for clarification or reconsiderations when newly discovered evidence becomes available and is not reflected in the findings and recommendations.  Subparagraph 4-24b(3) applies to separation for physical disability with severance pay.

41.  Paragraph B-39, of Army Regulation 635-40 pertains to intervertebral disc syndrome, 5293 and lumbosacaral strain, 5295.  It states that a 40 or 60 percent disability rating will be predicated upon objective medical finding of neurological involvement.  Lessor ratings will begin with 0 percent rating for chronic low back pain of unknown etiology (mechanical low back pain).  Demonstrable pain or 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.

42.  Title 38, United States Code, section 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active service.

43.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. 

44.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 

45.  DODD 1332.18 updates policy and responsibilities for separation or retirement for physical disability under Title 10, USC and related determinations.  It also establishes policy for processing Active and Reserve component members who have conditions that are cause for referral for physical disability evaluation. 

46.  DODI 1332.38 implements policy, assigns responsibilities, and prescribes procedures under DODI 1332.18 for retiring or separating service members because of physical disability; making administrative determinations for member with service incurred or aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits under Title 10, USC because the condition is unrelated to military status and duty.

47.  VASRD Code 5293 pertains to intervertebral disc syndrome.  It involves a herniation of the nucleus pulposus with impingement on the nerve root resulting in irritation and a radicular distribution of pain.

48.  VASRD Code 5295 pertains to lumbosacaral strain.  Demonstrable pain on spinal motion associated with positive radiographic findings shall warrant a 10 percent rating.  If paravertebral muscle spasm is also present, a 20 percent rating may be awarded.  Such paravertebral muscle spasms, however, must be chronic and evident on repeated examinations.

CONCLUSIONS:

1.  The applicant had a service connected injury for which he was given medical treatment and physical profile limitations.

2.  However, on 7 April 1995 he was determined physically fit to perform his duties by a PEB with his medical condition.  In accordance with applicable laws and Army regulations, this finding precluded him from being separated due to physical unfitness.

3.  The State AG's subsequent finding that the applicant was medically disqualified does not mean the PEB's finding was in error.  The State AG determined that the applicant was medically disqualified for retention.  The PEB determined that the applicant was physically fit to perform his duties.  These are two distinctly different findings.
4.  Therefore, it would appear that the applicant was properly released from active duty at his expiration of term of service (ETS).  

5.  The PDA stated that on 15 May 1997, the DODD 1332.18 and the DODI 1332.38 provided a right for Reserve members to request a fitness for duty determination for their non-duty related impairments.  The PDA stated that it was doubtful that the applicant was advised of his rights and was unaware of the procedures.  He should have had the option of requesting referral to a PEB but was never counseled concerning his rights in 1998.

6.  If the applicant's impairment continued to be classified as non-duty related, such a review could only determine fitness for duty, and not compensation.  If the PEB had confirmed the applicant unfit, his case would have been returned to the ARNGUS for continuation of nonduty-related medical separation.  If found fit, separation action would have been discontinued.  The applicant's medical data revealed little difference in the physical findings and only a PEB could have found the applicant fit for duty.  His restrictive profile and commander's comments would have led to an unfit finding and the applicant would have been returned for continuation of his medical separation.  

7.  The applicant's back pain was considered nonduty related and was processed that way.  There was no evidence of a LOD or request for a LOD.  However, his case would appear to support the position that his back impairment originated on active duty with no break in service.  The applicant's case should have been referred to a duty-related PEB that likely would have found him unfit.         

8.  The PDA carefully reviewed the 60 percent rating by VA; however, it could not be supported based on the available evidence and service regulations.  His back impairment would have been rated under VASRD Code 5293, intervertebral disc syndrome at 20 percent.  A higher rating could only be awarded upon objective neurological findings supported by laboratory data.  A review of the applicant's medical data showed no objective findings.  A 20 percent rating was the highest rating possible under this code for his level of impairment.  

9.  In conclusion, the PDA stated that the applicant should have had a fitness for duty PEB before he was medically separated form the ARNG which would have most likely found the applicant unfit for duty due to his back pain.  The PDA recommended that the applicant's records be corrected to show that he was medically separated from the military with 20 percent separation pay, under VASRD Code 5293.   

10.  It would now be appropriate to correct the applicant's NGB Form 22, dated 30 April 1998 to show that he was separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay.  

11.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  Insofar as records of the Washington Army National Guard are concerned, the ABCMR recommends that the Adjutant General of the State of Washington:         

a.  amend the applicant's NGB Form 22, dated 30 April 1998 to show that he was separated under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay; and

b.  that the applicant be paid severance pay in the pay grade of E-4, effective 30 April 1998. 

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

BOARD VOTE:  

__jl___  ___ls_____  ___rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Joann Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2002082322	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19980430	
DISCHARGE AUTHORITY	NGR 600-200, PARA 8-26J(1)AR 635-40 	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.