ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160015261 APPLICANT REQUESTS: In effect, correction of his DD Form 2808 (Report of Medical Examination), dated 12 December 2003, to show he did not have the condition of kyphosis prior to his enlistment in the Regular Army. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 2808 (Report of Medical Examination) (page 1) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His DD Form 2808 was altered. He went to get his medical exam on 12 December 2003 and was approved to join the Army and went to basic training in February. Upon discharge, this form was altered by adding a spinal injury with both boxes marked normal and abnormal. Alteration appears to be in a different handwriting and different ink. b. Moderate kyphosis is now listed on the Military Entrance Processing Station (MEPS) paperwork. If he did have that condition, then he would not have been admitted into the Army and his DD Form 214 (Certificate of Release or Discharge from Active Duty) would not exist. In March 2004, his battle buddy had blown his shoulder causing the left half of his body to swell enormously. At the height of his swelling, the Army doctors determined his spine was bent into his lungs. This is the reason he got discharged and this is the time he believes they altered his entrance physical exam paperwork, while telling him he must have been born a cripple. They refused to treat him in any way shape or form and refused to give him medicine to reduce the swelling. When the swelling went down after he got out, he saw a civilian doctor and his spine appeared to be normal though he tend to suffer a little bit still. The injustice is that the doctors altered an official government form, which makes him ineligible for any medical benefits through the Department of Veterans Affairs for this condition. 3. On 12 December 2003, the applicant underwent a medical examination at the St. Louis, MO MEPS for the purpose of enlistment into the Regular Army. His DD Form 2808 shows in block 28 (lungs and chest) that both, the normal and abnormal boxes, were checked. Item 44 (Notes) of the DD Form 2808 shows a handwritten note that reads "moderate kyphosis no fracture." The DD Form 2808 further shows he was found qualified for service. 4. The applicant enlisted in the Regular Army on 12 February 2004. His DA Form 2-1 (Personnel Qualification Record – Part II) shows his basic training commenced on 27 February 2004. 5. The applicant's separation proceedings are not available for review. However, his records contain a DD Form 214 that shows he was discharged on 9 April 2004 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards), after completing 1 month and 28 days of active duty service. 6. On 26 March 2019, the Army Review Boards Agency medical advisor provided an advisory opinion. The advisory found the following: a. The applicant's DD Form 2808, dated 12 December 2003, has both the "normal" and "abnormal" boxes checked for box 28, Lungs and chest. A note handwritten to the side states "moderate kyphosis, no fracture". The checkmark in the "normal" box has a small scribble over it. There are no initials by this note or the crossed out checkmark. b. There is no documentation of the kyphosis in block 77 or 88 (areas to write in abnormalities), only in block 44. The documentation in block 28 is irregular and could have been done to change a "normal" to "abnormal" finding, but the mistake/correction is not initialed, which is standard medical practice. Also of note, the examiner took care to document in block 27 the abnormal findings of a mild grade 1/6 systolic murmur, and did not mistakenly mark the "normal" block in that case. The examiner documented this clinically insignificant murmur in block 77 also. It seems unusual that the examiner would document the murmur, which is trivial, but not the kyphosis, which is disqualifying. If the examiner had purposefully omitted mention of his kyphosis in block 77 and 88, it seems inconsistent to write it in block 44. The applicant's contention that the record of his induction physical had been altered is indeed possible. c. The applicant did not meet medical accession standards for his kyphosis in accordance with Chapter 2, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. There is no medical waiver for this condition. Moderate kyphosis is noted on the induction physical but the documentation is somewhat irregular. However, this issue notwithstanding, the applicant has radiographic evidence from prior to enlistment that he had kyphosis (the anterior wedging of T11). Shortly after enlistment, he had x-rays showing significant kyphosis to a degree disqualifying for service. This may have been progression of the condition present before enlistment. Presumably, after entry into active duty, he presented with physical deformity/back pain, which led to the evaluation that fully assessed his unfitting condition. Kyphosis is a chronic condition that, in this case, existed prior to the applicant's enlistment. 7. A copy of the complete medical advisory opinion was provided to the Board for their review and consideration. 8. The applicant was provided a copy of the advisory opinion on 28 March 2019 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The board agreed with the conclusion of the medical advisory that the available documentation found insufficient evidence of a medical disability or condition that would support a CHANGE to the character(s), reason(s), rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness for the discharge in this case. However, the Board differed in opinion with the medical advisory in that the Board did not note irregularity in the MEPS physical review in that it appears that “normal” was corrected to “abnormal” in block 28 and was actually initialed “C”, and the comment that the medical opine said, “no fracture”. The board determined that the comment says, “no symptoms” but applies to block 27, the heart murmur, not the kyphosis. Therefore the board determined that there were no errors in the applicant’s narrative reason for separation. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, paragraph 5-11, in effect at the time, provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty, active duty for training, or initial entry training would be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time, and the medical condition did not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501. 3. Army Regulation 40-501, paragraph 2-33 (Spine and sacroiliac joints), of the version in effect at time, states that a lumbar scoliosis greater than 20 degrees, thoracic scoliosis greater than 30 degrees, and kyphosis or lordosis greater than 55 degrees when measured by the Cobb method, are causes for rejection for enlistment. 4. Army Regulation 15-185 (ABCMR), paragraph 2-9 (Burden of Proof) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20160015261 5 1