IN THE CASE OF: BOARD DATE: 6 December 2011 DOCKET NUMBER: AR20110004261 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, in effect, correction of his military records to show he was discharged due to physical disability. 2. The applicant states: a. he had the understanding that he would receive a medical evaluation board (MEB), but could first go home on a hardship discharge to take care of his family matters; b. he had family matters that required him to go home; c. English is his second language resulting in barriers at times with his Department of Veterans Affairs (VA) care; d. he needs an interpreter to be able to understand such issues as discharge procedures; e. he is currently disabled to the extent that he cannot work and is virtually homeless; and f. he wants to be returned to active duty for the purpose of receiving an MEB. 3. The applicant provides: * what appears to be diary entries dated 25 September and 6 October 2007 * Medical Clearance, Sea Mar Community Health Centers, dated 29 October 2007 * Electromyography (EMG) Study, Madigan Army Medical Center, Fort Lewis, WA, dated 13 November 2007 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Physical Therapy Initial Evaluation, dated 7 August 2009 * AIM Physical Therapy Clinic, Bismarck, ND, documents, dated 7 and 11 August 2009 * VA Rating Decision, dated 4 June 2010 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the applicant be brought back into the Army for medical separation processing. 2. Counsel states the applicant is not able to work because of his injury. Because English is his second language, he is having difficulty and requires a translator to assist him when communicating about this issue. He is virtually homeless at this time. He has attempted to find work in his field of pharmacy with the help of the VA; however, companies require him to disclose his prior injuries and, therefore, he is not hired. Counsel further states the applicant had the understanding he went home on a hardship but would be brought back for treatment and medical evaluation. He did not understand that the Army would not be taking care of his medical needs. 3. Counsel provides no additional documentation. 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. On 13 September 2007, the applicant enlisted in the Regular Army in the rank/grade of specialist (SPC)/E-4. He was subsequently assigned to Fort Benning, GA for his initial entry training (IET). 3. In what appears to be a diary entry by the applicant, dated 25 September 2007, he states he had fallen from a pull-up bar and injured his back when he landed on a wooden bar that was laying on the ground. Later when he had cooled down and was sitting in an air conditioned area, he started to feel a lot of back pain. He was sent to the medical clinic where he was x-rayed and prescribed pain medication. He was put on quarters for 2 days. Two days later he was reevaluated and referred to physical therapy. 4. On 13 November 2007, the applicant underwent an EMG study. All findings were normal. The examiner recommended he follow up with his primary physician. He should be referred for trial of interventional spine injections and chiropractic consideration. The examiner further recommended that the applicant's release from active duty would be best for both the Soldier and the Army. 5. On 18 January 2008, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 6, due to hardship. The basis for this request was his need to complete the paperwork process regarding the immigration of his wife and child. This process required his physical presence in Seattle, WA. 6. On 5 February 2008, the appropriate authority approved the applicant's request and directed that he receive an entry level separation (uncharacterized). He had not completed his initial training and he was not awarded a military occupational specialty; therefore, he was not eligible for transfer to the Individual Ready Reserve. Accordingly, he was discharged on 12 February 2008. He had completed 5 months of creditable active service. 7. The applicant's service medical records are not available for review. 8. A physical therapy initial evaluation at the AIM Physical Therapy Clinic, dated 7 August 2009, shows the applicant was diagnosed with lumbar spine pain with left radiculopathy. The report states that he had a recent history of lumbar spine pain and he received steroid injections and various medications for this condition. The assessment was that the applicant would benefit from physical therapy intervention with the goal of improving his range of motion by 50 percent (%) and decreasing pain by 50%, intermittent with all functional activities and with static positioning. His treatment plan required being seen one time per week for a period of 4 weeks and a home exercise program. 9. The VA Rating Decision, dated 4 June 2010, indicated the applicant had previously been awarded a 10% disability rating percentage for an annular tear (lumbar spondylosis). This rating was increased to 40%, effective 11 March 2009, based on a loss of his range of motion. 10. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his/her office, rank, grade or rating. 12. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION AND CONCLUSIONS: 1. The available evidence indicates the applicant sustained an injury to his back during the first 2 weeks of his IET. He was treated for pain and he was given a break from training to undergo physical therapy. There is no evidence that this injury at the time was so severe as to have made him unfit for duty. 2. Subsequent to his injury, the applicant voluntarily requested discharge due to family hardship. His request was determined to be justified and he was accordingly discharged on 12 February 2008. 3. The applicant has not shown he was unfit at the time of his discharge. A VA rating of 10% for loss of range of motion does not correlate strongly with unfitness. His medical condition has clearly changed for the worst since his discharge; however, an MEB today would not be able to reveal his level of fitness at the time of his discharge in 2008. 4. An award of a VA disability rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 5. In view of the foregoing, there is no basis for granting the applicant's requested relief. 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) AR20110004261 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110004261 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1