BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20190010188 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 9 November 1989, to show he was honorably discharged or to show he was medically discharged. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) • DD Form 214, for the period ending 9 November 1989 • Department of Veterans Affairs (VA) decisional documents, dated 6 March 2019 and 25 March 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 he was injured while in basic training. His DD Form 214 states he "did not meet procurement medical fitness standards – no disability"; however, the VA has granted him disability compensation for his injuries (degenerative arthritis of the spine and left lower radiculopathy). 3. The applicant enlisted in the Army National Guard (ARNG) on 6 July 1989 and entered initial active duty training for training (IADT) on 10 October 1989. 4. The applicant's personnel file contains few service medical records. However, the available records show: a. An Emergency Room (ER) treatment record, initiated on 21 October 1989, which indicates the applicant twisted his back. The physical examination found tenderness but no sensory or motor defects. An x-ray was ordered for a possible fracture and he was referred to orthopedics for follow-up evaluation. b. An Orthopedic Service treatment record, dated 23 October 1989, which indicates that during his first week in basic training, the applicant "twisted" his lower back and suffered low back pain following a run. The report indicates an x-ray found spondylosis at L5-S1; a copy of the x-ray report is not available for review. c. A DA Form 3349 (Physical Profile) issued in October 1989, which shows the examining physician noted the existence of a temporary condition that affected the applicant's lower extremities, thereby warranting a rating of "T-3" in his PULHES (the acronym used to address factors comprising the Military Physical Profile Serial System). It was also noted that the applicant was pending completion of a "635-200 MED BOARD." No medical board proceedings are of record. 5. The available records do not contain any separation processing documentation except a waiver of a separation examination. 6. The applicant was relieved from IADT, was discharged from the Reserve of the Army, and was returned to the control of the ARNG on 9 November 1989. The DD Form 214 shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, by reason of his failure to meet procurement medical fitness standards – no disability. His DD Form 214 further shows he was credited with 30 days of net active service and his service was uncharacterized. 7. The VA granted the applicant service-connection for degenerative arthritis of the spine at L4?5 and left lower extremity radiculopathy. The decisional document states: a. The applicant's service treatment records (STR) [in their possession] indicate he twisted his back on 21 October 1989 and was transported to the ER with severe pain. He was hospitalized with a diagnosis of spondylolysis at L5 ? S1: in the line of duty: Existed Prior to Service (EPTS), not permanently aggravated by service. He reported hospitalization for 2 weeks at Ft. Dix and the evidence suggests he may have been discharged from the hospital on 9 November 1989. It was noted that there was an x? ray showing spondylolysis, at L5?S1; however, the x-ray is not of record. He was discharged from the Army on 9 November 1989. b. On January 24, 1990, he was seen at the VA Medical Center Long Beach (records unavailable); however, a spine lumbosacral x-ray indicated a normal study. As he was separated from military service for a condition that was not noted on an x-ray a couple of months following service, the entire notion of spondylosis conflicted with the evidence of record. c. VA Examination findings, dated August 27, 2015, indicate the VA Examiner diagnosed him with degenerative arthritis, but opined that the condition claimed was less likely than not (less than 50% probability) to have been incurred in or caused by the claimed in-service injury, event, or illness. The rationale for this determination was: per the STRs the veteran was seen at the ER 10/21/1989 for back injury ("twisted" his back per some reports, per ER report, he had just finished running when pain started) and xray showed possible fracture at L5 (provisional diagnosis). He was referred to orthopedics who diagnosed him with spondylosis LS-Sl. It is very rare that a 20 year old (age of veteran at time) would have arthritic changes on x-ray (spondylosis). Furthermore, a twisting injury would not cause immediate findings of arthritis (which is what spondylosis is). Spondylolysis (a stress fracture involving the vertebra) is another possibility that was diagnosed. However, an x-ray of the lumbosacral spine that was done at the Long Beach VA shortly after (1/24/1990) is normal; neither spondylosis or spondylolysis was seen. There's also no evidence, besides a note that the veteran brought from his physician, documenting chronicity of back pain. d. The note brought by the veteran states he has been seen for the past 10 years; this still gives a gap of about 15 years where there's no documentation of back problems. Finally, the current x-ray shows mild degenerative changes (not uncommon, since per medical literature it's estimated that 80% of people above age 40 will have evidence of spondylosis on x-ray studies) and nothing regarding spondylolysis or spondylolisthesis or any other abnormality involving the L5. e. The VA Medical Opinion, dated 13 December 2018, indicates the VA Examiner considered the condition claimed was at least as likely as not to have been incurred in or caused by the claimed in-service injury, event or illness. The rationale given was that the enlistment examination 11 April 1989 is void/silent for a thoracolumbar condition. ER care was provided on 21 October 1989 due to low back pain with radiation. (1) History: Twisted back, precipitated by running. (2) Diagnosed: Low back pain secondary fracture versus disc injury. f. Medical records confirm the veteran continued to experience persistent low back pain. He was boarded out of service with diagnosis: spondylolysis L5-S1, not permanently service aggravated. Based on review of further medical records the diagnosis cited above is not confirmed. g. The veteran did sustain a low back injury during active service and continued to experience progressive escalation of the symptomatology, therefore his current low back condition is consistent with injuries events or accidents which occurred during his active duty. h. VA Examination findings, dated 27 August 2015, noted reduced muscle strength on left hip flexion and normal muscle strength for the right lower extremity, no muscle atrophy, normal deep tendon reflexes at the knee and ankle bilaterally. Sensory exam was decreased at the left tower extremity lower leg/ankle, and foot/toes, and normal at the right lower extremity thigh/knee; lower leg/ankle, and foot/toes. Straight leg raising test was normal for the right lower extremity and unable to perform for the left lower extremity. He reported moderate intermittent pain of the left lower extremity, moderate left lower extremity paresthesia and/or dysesthesias and moderate left lower extremity numbness. 8. The applicant did not complete IADT and was discharged due to spondylolysis with low back pain. The Army considered the condition to have EPTS without aggravation. Two months after his separation, a VA x-ray did not find any evidence of the spondylosis and the service records clearly show he had an injury while on active duty. 9. Since he had less than 90 days of service, had not completed training with award of a military occupational specialty, and his back problem was determined to be EPTS, the uncharacterized separation was mandated by regulation. BOARD DISCUSSION: 1. After reviewing the available records, to include the applicant's statement and the documents he provided, the Board concluded that a preponderance of the evidence does not support a recommendation to correct the applicant's record to show he was honorably discharged or to show he was medically discharged. The Board specifically noted that, in the absence of the x-ray that was the basis for the Army's diagnosis of his condition, it is difficult, if not impossible, to question the accuracy of the determination that he had an EPTS back condition. 2. The VA's assessment was noted, but the Board did not find that the VA's favorable service-connected disability determination, made under the VA's separate statutory authority, provides a basis for any corrections to his military service record. 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. 11/25/2019 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, 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 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. Paragraph 1-4 provided that a DD Form 214 would be prepared for the personnel listed below at the time of their retirement, discharge, or release from the Active Army. Personnel included were members of the ARNG of the U.S. and USAR separated after completing 90 days or more of continuous ADT, and those separated after completing initial active duty for training that resulted in the award of an MOS, even though the active duty was less than 90 days. 3. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management. Specifically, it references instruction related to the preparation of the DD Form 214. a. Paragraph 5-1f states that a DD Form 214 will be prepared for Reserve Component (RC) Solders completing active duty that results in the award of an MOS, even when the active duty period was less than 90 days (for example, completion of the advanced individual training component of ARNGUS Alternate Training Program or USAR Split Training Program). b. Paragraph 5-6x(1) states: "When a RC Soldier successfully completes initial active duty training the character of service is Honorable unless directed otherwise by the separation approval authority." 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 3 described the different characterizations of service. a. Paragraph 3-7a states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. b. Paragraph 3-9, of the regulation in effect at the time of his separation, stated that a separation would be described as an entry-level separation with service uncharacterized if processing is initiated while a Soldier is in an entry-level status (emphasis added), except in the following circumstances: (1) when characterization of under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or (2) when the Secretary of the Army, on a case-by-case basis, determines that an honorable characterization of service is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. c. Section II (Terms) of the glossary states that entry-level status for Soldiers in the ARNG and USAR begins upon enlistment in the ARNG or USAR and, for those Soldiers ordered to IADT for one continuous period, terminates 180 days after the commencement of IADT. 5. Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), effective 19 January 2004, set forth the basic authority for the separation of enlisted personnel. Chapter 3 describes the different characterizations of service. Paragraph 3-9a (Entry-level-status separation) provides that a separation will be described as entry-level, with service uncharacterized, if processing is initiated while a Soldier is in entry-level status, except when: a. characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case; b. the Secretary of the Army, on a case-by-case basis, determines that a Honorable characterization of service is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty; or c. the Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010188 ABCMR Record of Proceedings (cont) AR20190010188 1 5 ABCMR Record of Proceedings (cont) AR20190010188 1