IN THE CASE OF: 

		BOARD DATE: 8 June 2023

		DOCKET NUMBER: AR20220008707


APPLICANT REQUESTS: 

*	Revise the regulatory basis for his separation to show he was medically retired
*	Correct his military records to show his correct date of birth, vice "01/01/1900"

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	Online DD Form 149 (Application for Correction of Military Record)
*	Two Department of Veterans Affairs (VA) letters

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto). 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, in effect, after his separation, a medical evaluation board 
(MEB) determined his medical condition was service-connected and granted him a 
disability rating of 100%. In addition, the Army's personnel system currently lists his date 
of birth as the default date of, "01/01/1900."; the applicant provides his actual date of 
birth. He affirms that, to date, he has never received any disability compensation, 
separation pay, education benefits, or any of the other benefits normally conveyed to 
Soldiers who are medically retired.  In support of his request, the applicant submits two 
VA letters that show the VA has granted him a combined 100 percent disability rating; 
the letters do not identify any associated disabilities.

3.  A review of the applicant's service record reveals the following:

	a.  On 1 February 2000, the applicant enlisted into the Regular Army for 6 years; 
upon completion of initial entry training and the award of military occupational specialty 
63B (Light Wheeled-Vehicle Mechanic), orders transferred the applicant to Germany, 
and he arrived at his new unit, on or about 19 December 2000.
	b.  In February 2001, medical authority issued the applicant a physical profile for 
back pain; the profile showed the physical factor "L" (Lower Extremities) had a 
numerical designator of "4" (severe medical condition or physical defect requiring 
drastic duty limitations).

	c.  In May 2001, medical authority completed a medical narrative summary 
(NARSUM) for an MEB; the NARSUM detailed the applicant's background and history 
of back pain and concluded with the following diagnoses: "Symptomatic Scoliosis" and 
"Mechanical Low Back Pain."

	d.  On 10 June 2001, an MEB determined the applicant failed the medical retention 
standards outlined in Army Regulation (AR) 40-501 (Standards of Medical Fitness) for 
"Symptomatic Scoliosis" and "Mechanical Low Back Pain." On 20 June 2001, the 
applicant concurred with the MEB's findings, and the applicant's case was forwarded to 
a physical evaluation board (PEB) for a fitness determination.

	e.  On 16 July 2001, an informal PEB determined the applicant was unfit for 
continued military service based upon a medical condition that existed prior to service 
(EPTS). Because EPTS conditions were not compensable under the Army's Physical 
Disability System, the applicant's appropriate disposition was no disability rating and 
separation without the entitlement to disability benefits. On 1 August 2001, the applicant 
concurred with the informal PEB's findings and recommendations and waived his right 
to a formal PEB.

	f.  At some point in August 2001, the U.S. Army Total Army Personnel Command 
(PERSCOM) directed the applicant's discharge, citing paragraph 4-24b (4) (Disposition 
by PERSCOM – Final Disposition – Separation for Physical Disability Without 
Severance Pay), AR 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation); PERSCOM stated disability severance pay was not authorized, and the 
applicant's discharge had to occur prior to 13 November 2001.

	g.  On 19 October 2001, orders honorably discharged the applicant, per AR 635-40, 
paragraph 4-24b (4). His DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows he was discharged in accordance with AR 635-40 due to a disability that 
existed prior to service. He completed 1 year, 8 months, and 19 days of his 6-year 
enlistment contract.  Item 5 (Date of Birth) –; the listed date of birth and the date of birth 
provided by the applicant match. 

	h.  A review of the applicant's online record, maintained by the U.S. Army Human 
Resources Command (HRC) and with summarized profile in HRC's Soldier 
Management System (SMS) database, reveals HRC shows the applicant's date of birth 
as "01/01/1900."

4.  Concerning the applicant's request to be medically retired based on VA's disability 
decision.

	a.  AR 635-40, in effect at the time, stated:

		(1)  According to accepted medical principles, certain medical conditions, when 
discovered, lead to the conclusion they must have existed prior to the Soldier's entry on 
active duty (EPTS); this includes congenital and hereditary conditions. 

		(2)  PEBs were charged with investigating the nature, cause, degree of severity, 
and probable permanency of a Soldier's disabling conditions; assessing the Soldier's 
physical conditions against the physical requirements of the Soldier's particular office, 
grade, rank, or rating; and making findings and recommendations, to include ratings 
determinations, in accordance with the law.

		(3)  The PEB's available dispositions for the Soldier were: return to duty; 
separate with severance pay when the combined disability rating was 20 percent or 
less; separate without severance pay when the medical condition was EPTS. For 
combined ratings of 30% or more: when the PEB could not confirm the permanency of a 
disabling condition, it recommended the Soldier for the Temporary Disability Retired 
List; conditions not likely to change over time resulted in placement on the Permanent 
Disability Retired List

		(4)  PERSCOM had the responsibility of directing final disposition for a Soldier's 
disability case.

	b.  The applicant provides evidence the VA has rated him as 100 percent disabled.

		(1)  The VA and the Army operate under separate provisions of Federal law 
(Title 38 (Veterans' Benefits) and Title 10, respectively). As such, each makes 
independent determinations by applying the policies and mandates set forth within their 
respective parts of the law. Decisions made by the VA regarding a Soldier's service-
connected disabilities are not binding on the Army, and do not reflect that the Army's 
determinations were wrong.  

		(2)  The Army rates only conditions determined by the Army's Disability 
Evaluation System to be physically unfitting; to have resulted from or were aggravated 
by the Soldier's military service; and which disqualified the Soldier from further military 
service. Conditions incurred prior to the Soldier's entry on active duty are not 
compensable and are not rated.

		(a)  The benefits associated with the Army's disability rating are intended to 
compensate the individual for the loss of a military career. 
		(b)  By contrast, the VA awards disability ratings to Veterans for service-
connected conditions, including those conditions detected after discharge; the VA's 
focus is on compensating the individual for the loss of civilian employability and can be 
continually adjusted when supported by subsequent medical evaluations.

5.  HRC is responsible for maintaining the accuracy of SMS; the applicant's available 
service record includes documents confirming his date of birth.

6.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, his previous ABCMR denial, the military electronic 
medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical 
Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness 
Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records 
Management System (iPERMS).  The ARBA Medical Advisor made the following 
findings and recommendations:  
    b.  The applicant is applying to the ABCMR requesting they change his disability 
discharge disposition from physical disability without severance pay to permanent 
retirement for physical disability.  
    c.  The Record of Proceedings outlines the circumstances of the case.  His DD 214 
Shows he entered the regular Army on 1 February 2000 and was separated for physical 
disability without disability severance pay on 19 October 2001 under provisions 
provided in paragraph 4-24b(4) of AR 635-40, Physical Evaluation for Retention, 
Retirement, or Separation (1 September 1990): Separation for physical disability without 
severance pay.
    d.  Service members may be separated from their Service without compensation, i.e., 
severance pay or retirement, for a physical disability which was neither incurred nor 
permanently aggravated (made worse) during a period of qualifying Service.
    e.  The applicant was placed on a permanent duty limiting permanent physical profile 
for “Back Pain” on 9 February 2001.  From the 11 May 2001 medical evaluation board 
(MEB) narrative summary:
“HISTORY OF PRESENT ILLNESS:  {Applicant} is a 20-year-old active male 
with mid and low back pain since approximately July 2000 while in AIT {advance 
individual training}.  Soldier denies any trauma.  Soldier notes onset of back pain 
during physical training. 
Initially noted centralized low back pain without radiation as well as denied any 
bladder or bowel disfunction. Soldier currently notes some numbness and tingling 
in his bilateral shoulder blades with any radiation to his lower extremity ... 
Soldier notes that back pain interferes with his MOS to include inability to lift, run, 
wear rucksack, wear load-bearing equipment, wear a flak vest and to perform sit-
ups.  He was seen by Orthopedics on multiple occasions and in January 2001 
was given a permanent L4 profile.  That has led to this current MEB.
PHYSICAL EXAMINATION: … The back examination reveals a prominent left 
thoracic (and) right lumbar curves.  There is no tenderness to palpation.  Range 
of motion is somewhat decreased with forward flexion of 5 inches from the floor. 
Side bending is also slightly decreased to approximately 40 degrees both right 
and left which is symmetric. 
Soldier is able to toe and heel walk normally. Straight leg raises {a test for 
radiculopathies} are negative in bilateral lower extremities.  Neurologic 
examination reveals 5/5 motor strength in bilateral plantar flexes, quadriceps, 
ankle dorsiflexors, extensor hallucis longus and ankle plantar flexes. Reflexes 
are equal and symmetric throughout bilateral lower extremities ...  Sensation to 
light touch is intact throughout bilateral lower extremities distally ... 
RADIOLOGIC/LABORATORY DATA:  Radiographs of the spine reveal a 20 
degree right lumbar, 10 degree right thoracic curve. Otherwise radiographs were 
within normal limits.  There are no signs of degenerative changes ...
DIAGNOSIS: 1. Symptomatic scoliosis.
      2. Mechanical low back pain.”
    f.  The MEB determined these conditions failed medical retention standards of AR -
40-501, Standards of Medical Fitness.  On 20 June 2001, the applicant agreed with the 
MEB’s findings and recommendation and his case was forwarded to a Physical 
Evaluation  Board (PEB) for adjudication.  
    g.  On 16 July 2001, the PEB found combined these two conditions into “Mechanical 
low back pain which started in AIT” and found it to be unfitting for continued military 
service.  They also determined it was non-compensable: “The PEB has reviewed the 
medical evidence of record and concludes that there is sufficient evidence to 
substantiate an EPTS (existed prior to service) condition for which you are now unfit.  
Your condition has not been permanently aggravated by service but is the result of 
natural progression. In that EPTS conditions are not compensable under the Army 
Physical Disability System, the proper disposition is separation from the Army without 
entitlement to disability benefits.”
    h.  On 1 August 2001, after counseling on the board’s findings and recommendation 
by his PEB liaison officer, he concurred with the PEB and waived his right to a formal 
hearing.
    i.  Excerpts from “Adolescent Idiopathic Scoliosis: Natural History and Long-Term 
Treatment Effects” authored by M.A. Asher D.C. Burton, and published in Scoliosis and 
Spinal Disorders on 31 March 2006:
“Curves initially 30°or less tended not to progress whereas curves more than 30° 
usually progressed ...”
Based on these series and many other individual attempts to gain insight in the 
natural history of adolescent idiopathic scoliosis, it is possible to gain a good 
idea, albeit incomplete, of the effect of adolescent idiopathic scoliosis on health-
related quality of life.
Function, based on outcome measures of work and level of disability, of patients 
with untreated adolescent idiopathic scoliosis do not appear different than 
controls [22]. However, this study was conducted over a period of time, and 
possibly in a population, when disability was less of an option.  Based on 
responses to questionnaires scoliosis of even small size may be associated with 
difficulty in carrying out physical activities, particularly in females with curves 
greater than 40° [38].
Back pain prevalence is significantly higher than control populations. [22, 39] 
However, back pain severity and duration may [39] or may not be increased [21, 
22].  Pain severity does not correlate with curve size [21, 39]. Curve pattern may 
be associated with increased pain [23].  When related, thoracolumbar curves 
seem the most [24, 34] and double curves the least [34] likely to be associated 
with increased pain.  Arthritic changes are not associated with increased pain 
[22] whereas translatory shift in the thoracolumbar spine may be. [24] …
Most patients with untreated adolescent idiopathic scoliosis function at or near 
normal levels, even though pain is more prevalent.”
      (https://scoliosisjournal.biomedcentral.com/articles/10.1186/1748-7161-1-2) 
    j.  Paragraph E2.1.3.2 of Enclosure 2 of Department of Defense Instruction 1332.38, 
SUBJECT: Physical Disability Evaluation, defines service aggravation:
“The permanent worsening of a pre-Service medical condition over and above 
the natural progression of the condition caused by trauma or the nature of 
Military Service.”
    k.  Paragraph E3.P4.5.2.3 of Department of Defense Instruction 1332.38, SUBJECT: 
Physical Disability Evaluation, 14 November 1996 addresses the presumption of service 
aggravation of a medical condition.   It states in part:  

“The presumption that a disease is incurred or aggravated in the line of duty may 
only be overcome by competent medical evidence establishing by a 
preponderance of evidence that the disease was clearly neither incurred nor 
aggravated while serving on active duty or authorized training.” 

    l.  Paragraph 3-2a(3) of AR 600-8-4, Line of Duty Policy, Procedures, and 
Investigations (1 September 1990) states:
“Only specific findings of “natural progression” of the preexisting disease or 
injury, based upon well-established medical principles are enough to overcome 
the presumption of military service aggravation.”

    m.  Service aggravation is defined in the glossary of AR 600-8-4, Line of Duty Policy, 
Procedures, and Investigations (1 September 1990)

Service aggravation

*	Medical treatment facilities frequently list a medical condition as "service 
aggravated" based on the fact that the condition becomes symptomatic 
under certain conditions found in the military.  Symptoms arising when 
limits imposed by a condition have been exceeded are poor criteria of 
service aggravation of the condition, itself.

*	When an EPTS condition becomes symptomatic under the stress of active 
duty it may be unfitting but it has not been aggravated by AD {active duty} 
unless it has been permanently worsened over and above natural 
progression.

    n.  The applicant’s developmental spinal deformity clearly existed prior to his 
enlistment and became symptomatic soon thereafter “under certain conditions found in 
the military.”  As noted above, people with such a spinal deformity are more likely to 
have activity related pain than the general population.

    o.  Review of his records in JLV shows he has been awarded multiple VA service-
connected disability ratings, several of which are related to his spine.  However, the 
requirements for an affirmative Army line of duty determination and possible 
compensation vice a VA service connection, though similar, are different in several 
respects, this being one of those.  The VA will service connect a pre-existing condition 
when the Veteran has the onset of symptoms during a period of service with little regard 
to the length of service during which the condition presented.  They will also service 
connect a condition when the onset of the condition is within one year of release from 
active duty.

    p.  The DES only compensates an individual for service incurred or permanently 
service aggravated medical condition(s) which have been determined to disqualify him 
or her from further military service.  The DES has neither the role nor the authority to 
compensate service members for anticipated future severity or potential complications 
of conditions which were incurred or permanently aggravated during their military 
service.  These roles and authorities are granted by Congress to the Department of 
Veterans Affairs and executed under a different set of laws.

    q.  It is the opinion of the ARBA Medical Advisor that neither a change of his disability 
discharge disposition from physical disability without severance pay to permanent 
retirement for physical disability nor a referral of the applicant’s case to the Disability 
Evaluation System is warranted.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
evidence of record shows the applicant was honorably discharged due to a disability 
that existed prior to service. The Board reviewed and agreed with the medical advisory 
finding that neither a change of his disability discharge disposition from physical 
disability without severance pay to permanent retirement for physical disability nor a 
referral of his case to the Disability Evaluation System is warranted. The Board also 
noted that the military’s disability system only compensates an individual for service 
incurred or permanently service aggravated medical condition(s) which have been 
determined to disqualify him or her from further military service. The VA on the other 
hand has the role or the authority to compensate service members for anticipated future 
severity or potential complications of conditions which were incurred or permanently 
aggravated during their military service. Lastly, the Board note that the DOB listed on 
his DD Form 214 () matches the DOB provided by him.

?
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, USC, 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 ABCMR determines it would be in the 
interest of justice to do so.  

2.  Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) 
provides the Secretary of the Army shall ensure that an applicant seeking corrective 
action by ARBA is provided a copy of all correspondence and communications, 
including summaries of verbal communications, with any agencies or persons external 
to agency or board, or a member of the staff of the agency or Board, that directly 
pertains to or has material effect on the applicant's case, except as authorized by 
statute.

3.  AR 635-40, in effect at the time, stated:

	a.  Paragraph 3-3 (Conditions Existing Before Active Military Service). According to 
accepted medical principles, certain medical conditions, when discovered, lead to the 
conclusion they must have existed prior to the Soldier's entry on active duty (EPTS); this 
includes congenital and hereditary conditions.

	b.  Per paragraph 4-17 (PEBs), PEBs were charged with investigating the nature, 
cause, degree of severity, and probable permanency of a Soldier's disabling conditions; 
assessing the Soldier's physical conditions against the physical requirements of the 
Soldier's particular office, grade, rank, or rating; and making findings and 
recommendations, to include ratings determinations, in accordance with the law.

	c.  The PEB's available dispositions for the Soldier were:

*	return to duty (paragraph 4-24b (8))
*	separate with severance pay when the combined disability rating was 
20 percent or less (paragraph 4-24b (3))
*	separate without severance pay when the medical condition was EPTS 
(paragraph 4-24b (4))
*	combined ratings of 30 percent or more: 

*	When the PEB could not confirm the permanency of a disabling condition, 
it recommended the Soldier for the Temporary Disability Retired List 
(paragraph 4-24b (2))
*	Conditions not likely to change over time resulted in placement on the 
Permanent Disability Retired List (paragraph 4-24b (1))

	d.  Paragraph 4-24 (Disposition by PERSCOM). PERSCOM had the responsibility of 
directing final disposition for a Soldier's disability case.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220008707


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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