IN THE CASE OF:  

		BOARD DATE:  25 August 2020

		DOCKET NUMBER:  AR20170006946


APPLICANT REQUESTS: a physical disability discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review Discharge from the Armed Forces of 
the United States)
*	Privacy Release Form
*	Personal statement
*	Medical documents
*	Letter from Department of Veteran Affairs (VA)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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 he was denied a Certificate of Eligibility for a Department of 
Veteran Affairs Home Loan because of an erroneous DD Form 214 which does not 
reflect a service related injury which occurred in 1974.  He has an honorable discharge, 
he just need it to reflect his actual reason for discharge based on medical evidence.  
This is very important due to his hardship.  He was awarded VA disability due to his 
service injury.  During training he was bumped from behind which caused a back injury.  
The injury was attributed to scoliosis.  He was an athlete in high school and was 
unaware he had scoliosis.  He went to see a doctor in 1984, for spasms and stiffness 
and was told he had prior trauma to his back.  His records should be corrected to show 
he was discharged due to his back injury.   

3.  The applicant enlisted in the Regular Army on 19 August 1974.

4.  On 28 August 1974:

     a.  A narrative summary indicates the applicant was diagnosed with 
scoliosis with existed prior to service.  It was determined the applicant did not meet 
fitness standards for induction under the provisions of Army Regulation 40-501 
(Standards of Medical Fitness), chapter 2, paragraph 2-36h.

     b.  The applicant acknowledged he had been advised he had a medical condition 
which would have permanently disqualified him for entry in the military had it been 
detected at that time and it did not disqualify him from retention in the military under the 
provisions of Army Regulation 40-501.  He further acknowledged being advised the 
approved medical board findings confirm the findings of the examining physician and he 
elected to apply for separation from the military service by reason of having been 
erroneously inducted or enlisted.  He also acknowledged being advised of his rights.

5.  On 6 September 1974, a Medical Board Proceedings found the applicant unfit for 
enlistment due to scoliosis which existed prior to service.  The applicant did not desire 
to continue on active duty.  The proceedings were approved on 9 September 1974.

6.  On 17 September 1974, the applicant was honorably discharged under the 
provisions of Army Regulation 635-200  (Personnel Separations – Enlisted Personnel), 
paragraph 5-9 , due to failure to meet established physical standards (no disability).  He 
competed 29 days of net active service this period. 

7.  Army Regulation 635-200, in effect at the time, provided the authority for the 
administrative separation of enlisted personnel.  Paragraph 5-9 (Discharge of personnel 
who did not meet procurement medical fitness standards) states individuals who were 
not medically qualified under procurement medical fitness when accepted for induction 
or initial enlistment will be discharged when a medical board, regardless of the date 
completed, establishes that a medical condition was identified by appropriate military 
medical authority within 4 months of the member’s initial entrance on active duty or 
active duty for training under the Reserve Enlistment Program of 1963.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating

9.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability.  

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

11.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service.  The Army disability 
rating is to compensate the individual for the loss of a military career.  The VA does not 
have authority or responsibility for determining physical fitness for military service.  The 
VA may compensate the individual for loss of civilian employability.

12.  Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for 
disabilities which were incurred in or aggravated by active military service.  However, an 
award of a VA rating does not establish an error or injustice on the part of the Army.  

13.  Title 38, CFR, Part IV is the VA’s schedule for rating disabilities.  The VA awards 
disability ratings to veterans for service-connected conditions, including those conditions 
detected after discharge.  As a result, the VA, operating under different policies, may 
award a disability rating where the Army did not find the member to be unfit to perform 
his duties.  Unlike the Army, the VA can evaluate a veteran throughout his or her 
lifetime, adjusting the percentage of disability based upon that agency's examinations 
and findings.

14.  Based on the applicant's contention the Army Review Board Agency medical staff 
provided a medical review for the Board members. See "MEDICAL REVIEW" section.

MEDICAL REVIEW:

1.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and searched for the applicant's records in iPERMS, the Armed Forces 
Health Longitudinal Technology Application (AHLTA), Health Artifacts Image 
Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the 
following findings and recommendations:

2.  Due to the age of the case, no records were found in AHLTA and iPerms.  JLV 
search showed the applicant is 100% total combined service connected.

3.  28 August 1974 Ireland Army Hospital (PTCLIAH) Clinical Record Narrative 
Summary annotates that during the first week of training, the applicant complained of 
low back pain with training activities.  He was found to have Scoliosis (curvature of the 
spine) and possible spondylolysis.  An x-ray confirmed Thoracolumbar Scoliosis.

4.  In his 17 April 2017 written statement to his Congresswomen, he indicated he injured 
his back in the second week of basic training due to a bad fall injuring his back and 
shoulder.  He contends that he was an athlete in high school and didn’t know he had 
scoliosis.  He also stated that a fall while running on the 10th day of training caused his 
back pain and not scoliosis.  However, the 27 August 1974 consultation to PTCLIAH for 
pain in the back documents that the applicant complained of back pain the first week of 
basic training and stated that he had a history of scoliosis.  There was no report of back 
injury.

4.  A prominent rib hump was observed during examination.  The 19 August 1974 
Induction exam noted the mild asymptomatic spinal curvature and diagnosed Scoliosis 
and marked him qualified.  A second undated induction exam form showed the Scoliosis 
diagnosis and marked him not qualified with a U3 profile.  The 29 August 1974 
Disposition Form exam revealed that he had a medical condition which would have 
permanently disqualified him for entry in the Army had it been detected at the time, but 
would not disqualify him for retention in the Army under provisions of Chapter 3, AR 40-
501. 

6.  The 06 September 1974 Medical Board Proceedings showed the applicant was unfit 
for enlistment indicating the back condition existed prior to service and was not 
aggravated by military service.  Based on available records for review, the Scoliosis 
condition existed prior to service, was not aggravated by military service, and did not 
meet induction standards per AR 40-501 although it may have met retention standards.  
Referral for consideration for separation through medical channels is not warranted at 
this time.


BOARD DISCUSSION:

After review of the application and all evidence, including the applicant’s statement and 
the ARBA Medical Advisory Opinion, the Board determined there is insufficient evidence 
to grant relief.  The applicant attended BCT and was on active duty for less than one 
month before separating.  Entrance exams indicate the applicant had scoliosis and 
during clinic visits while in BCT, the applicant indicated he had a history of scoliosis.  
The applicant underwent medical evaluation board (MEB) proceedings on 6 September 
1974, while in BCT.  The MEB determined the applicant’s scoliosis existed prior to 
service.  There is insufficient evidence of an acute incident/injury during BCT that 
otherwise caused the applicant’s condition.  As such, there is no basis on which to grant 
relief and provide the applicant a physical disability discharge.



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.


REFERENCES:

1.  Title 10, United States 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 ABCMR to excuse an applicant's 
failure to timely file within the 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability.  The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-
40.

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in a medical evaluation board (MEB); when they 
receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 
Military Occupational Specialty (MOS) Medical Retention Board; and/or they are 
command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and physical evaluation board (PEB).  The purpose of the MEB is to determine 
whether the service member's injury or illness is severe enough to compromise his/her 
ability to return to full duty based on the job specialty designation of the branch of 
service. A PEB is an administrative body possessing the authority to determine whether 
or not a service member is fit for duty.  A designation of "unfit for duty" is required 
before an individual can be separated from the military because of an injury or medical 
condition.  Service members who are determined to be unfit for duty due to disability 
either are separated from the military or are permanently retired, depending on the 
severity of the disability and length of military service.  Individuals who are "separated" 
receive a one-time severance payment, while veterans who retire based upon disability 
receive monthly military retired pay and have access to all other benefits afforded to 
military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness.  In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty.  A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

3.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating.  Only the unfitting conditions or defects and those which 
contribute to unfitness will be considered in arriving at the rated degree of incapacity 
warranting retirement or separation for disability.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by 
reason of service-incurred illness or injury; rather, it is provided to Soldiers whose 
service is interrupted and who can no longer continue to reasonably perform because of 
a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

5.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, provided the authority for the administrative separation of enlisted personnel.
Paragraph 5-9 (Discharge of personnel who did not meet procurement medical fitness 
standards) states individuals who were not medically qualified under procurement 
medical fitness when accepted for induction or initial enlistment will be discharged when 
a medical board, regardless of the date completed, establishes that a medical condition 
was identified by appropriate military medical authority within 4 months of the member’s 
initial entrance on active duty or active duty for training under the Reserve Enlistment 
Program of 1963 which:

        (1)  would have permanently disqualified him for entry into the military service had 
it been detected at that time; and

        (2)  does not disqualify him for retention in the military service under the provisions 
of chapter 3, Army Regulation 40-501.

        (3)  Commanders specified in paragraph 2-17a are authorized to order discharge 
under this paragraph.  Separation will be accomplished within 72 hours following 
approval by the discharge authority.  Authority for discharge (paragraph 5-9, Army 
Regulation 635-200) and Separation Program Number (SPN) 375 (discharge due to not 
meeting medical fitness standards at the time of enlistment) will be included in directives 
or orders.

        (4)  Members who do not meet the medical fitness standards for retention will be 
processed under the provisions of Army Regulation 635-40. 

6.  Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability 
resulting from personal injury suffered or disease contracted in line of duty, or for 
aggravation of a preexisting injury suffered or disease contracted in line of duty, in the 
active military, naval, or air service, during a period of war, the United States will pay to 
any veteran thus disabled and who was discharged or released under conditions other 
than dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as provided in 
this subchapter, but no compensation shall be paid if the disability is a result of the 
veteran's own willful misconduct or abuse of alcohol or drugs.

7.  Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic 
Entitlement) states for disability resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, or air service, during other than a 
period of war, the United States will pay to any veteran thus disabled and who was 
discharged or released under conditions other than dishonorable from the period of 
service in which said injury or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but no compensation shall be 
paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol 
or drugs.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20170006946


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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