IN THE CASE OF: BOARD DATE: 30 November 2010 DOCKET NUMBER: AR20100013546 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his DA Form 199 (Physical Evaluation Board Proceedings) dated 18 December 1978 to show that his spondylolysis was aggravated while entitled to basic pay. 2. The applicant states his DA Form 199 is incorrect and it contradicts item 20g (Aggravated by Active Duty) on his DA Form 3947 (Medical Board Proceedings). 3. The applicant provides copies of the following documents: * DA Form 3947 * VA Form 21-4148 (Department of Veterans Affairs Statement in Support of Claim) * DA Form 199 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Army on 8 December 1977 and he completed training as a petroleum supply specialist. 3. A Medical Evaluation Board (MEB) convened on 5 December 1978. He was diagnosed with congenital spondylolysis for L-5 on the right with weakness of the low back, demonstrated by persistent and recurrent symptoms of low back pain on routine daily activities. In item 20g on the DA Form 3947 he received, the MEB indicated that his condition was aggravated by active duty. 4. A Physical Evaluation Board (PEB) convened on 18 December 1978. He was diagnosed with low back pain secondary to spondylolysis of L5 with characteristic pain on motion, which existed prior to service (EPTS). The PEB determined his level of impairment in accordance with the VA Schedule for Rating Disabilities had not increased from that which existed prior to his entry on active duty; therefore, there was no service aggravation. On the DA Form 199 he received, the PEB indicated that his condition was not incurred in the line of duty (LOD) and was not incurred or aggravated while entitled to basic pay. The PEB found him physically unfit and recommended he be separated from military service without entitlement to benefits. The applicant concurred with the PEB's findings on 26 October 1978. 5. On 2 February 1978, the applicant was honorably discharged, due to disability, other. 6. Army Regulation 600-8-4 (Line of Duty Policy, Procedures and Investigations), chapter 4, paragraph 4-8(e) states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in the LOD. If an EPTS condition is not aggravated by military service, the finding will be not in the LOD, EPTS.  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation. DISCUSSION AND CONCLUSIONS: 1. The applicant’s contentions have been considered. However, although the MEB determined his condition was not aggravated by active duty (while also indicating he had low back pain on routine daily activities), in the expert opinion of the PEB that provided their reviews, his disqualifying condition was not incurred or aggravated while entitled to basic pay. 2.  There is no evidence in the available record, nor has he submitted any evidence that shows the findings of the PEB were incorrect. As previously stated, he concurred with the PEB's findings on 26 October 1978. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __X_____ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20100013546 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100013546 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1