IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004684 APPLICANT REQUESTS: in effect, physical disability discharge in lieu of honorable release from active duty as an early release overseas returnee. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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. Records indicate he had been refused a job due to an x-ray of his back prior to his induction into the Army. That is not accurate and he was never refused a job for any reason prior to being inducted into the Army. His first x-ray of his back due to back pain was while in Germany and the x-ray indicated a curvature. b. He has since been turned down for disability due to the notation in his record. There is no indication in the record of a hospital or doctor to verify. The fact is he did not go to a doctor for anything until he went into the military. He has been turned down for disability after extensive back surgery and chronic pain since his discharge from the Army. 3. A Standard Form 88 (Report of Medical Examination) shows the applicant underwent medical examination for the purpose of induction on 23 June 1965, and was found qualified for induction with a physical profile rating of “1” (high level of fitness) in all factors. 4. A DD Form 47 (Record of Induction) shows the applicant was inducted into the Army of the United States on 24 June 1965, subsequent to medical determinations from 3 August 1964 and 23 June 1965, in which he was determined qualified for induction with a physical profile rating of “1” in all factors. 5. A physical profile is used to classify a Soldier’s physical disabilities in terms of six factors or body systems, as follows: “P” (Physical capacity or stamina), “U” (Upper extremities), “L” (Lower extremities), “H” (Hearing), “E” (Eyes), and “S” (Psychiatric) and is abbreviated as PULHES. Each factor has a numerical designation: 1 indicates a high level of fitness, 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 6. The applicant’s DA Form 20 (Enlisted Qualification Record) shows the following: * item 17 (Physical Status) shows Code A (no restrictions) effective 23 June 1965 * item 18 (Assignment Limitations) is blank * item 31 (Foreign Service) shows he served in Germany from 18 November 1965 through 3 June 1967 7. A Standard Form 89 (Report of Medical History) shows the applicant underwent medical examination on 27 March 1967, for the purpose of separation. He indicated on the form he was in good health and with regard to himself and conditions he had, marked only that he wore glasses. 8. A second Standard Form 88, shows the applicant underwent medical examination on 27 March 1967, for the purpose of separation. The summary of defects and diagnoses lists caries of teeth and myopia and astigmatism of both eyes, corrected to 20/20. He was deemed qualified for separation with a physical profile rating of “1” in all factors. 9. A Standard Form 600 (Chronological Record of Medical Care) shows the following: a. The applicant was seen at the U.S. Army Dispensary, Bad Hersfeld, Germany, on 17 April 1967 with complaints of pain in the side of his back. b. The notes show [he] first told of back trouble in March 1964, when he applied for a job requiring lifting and a routine x-ray revealed abnormality, which the company said predisposed him to back trouble and they refused to hire him. c. However, he had no symptoms until November 1965 at Fort Dix, NJ (no note in chart) when while loading a truck he injured his back with localized lower back pain for a few days. He was seen in the dispensary there, but there is no note in his chart. d. He awoke this morning with pain on the left side of his back exacerbated on putting weight on his left foot when walking. No predisposing history of lifting, etc. e. Physical exam shows Straight Leg Raise (SLR) to 90 degrees negative on the right and slight back pain on the left, but only at 80 to 90 degrees. No local spasm. Able to touch toes without pain. f. The impression shows back strain, lumbar deformity by x-ray per medical history. g. The disposition shows x-rays back; will send for official interpretation, but seems to be congenital abnormality involving L5; no spondolysthesis, etc. No profile, hard bed, exercises, will see how it goes. 10. The applicant’s available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his Military Occupational Specialty (MOS) and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 11. The applicant’s DD Form 214 shows he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as an early release overseas returnee on 7 June 1967 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He was credited with 1 year, 11 months, and 14 days of net active service. 12. U.S. Army Administration Center Letter Orders Number 06-1106405, dated 9 June 1971, honorably discharged the applicant from the USAR Control Group (Standby) effective 23 June 1971, due to expiration term of service. 13. 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, 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting his lumbar spine condition be found to have been incurred during his period of active service and not a condition which existed prior to his Service. a Purple Heart be added to his service record. He states: “Records indicate that I had been refused a job due to an x-ray of my back prior to my induction into the Army. That is not accurate, and I was never refused a job for any reason prior to my being inducted into the Army. My first x-ray of my back due to back pain was while in Germany and the x-ray indicated a curvature. I have since been turned down for disability due to the notation on my record. There is no indication in the record of a hospital or doctor to verify. Fact is, did not go to a doctor for anything until I went into the military.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 24 June 1965 and received an honorable discharge on 7 June 1967 under the provisions provided in section VII, Chapter 5 of AR 635-200, Personnel Management – Enlisted Personnel (1 June 1967): Early Separation of Overseas Returnees. The separation program number (SPN or “spin code”) of 411 denotes “Early separation of overseas returnee.” d. Both the applicant’s pre-entrance and pre-separation Reports of Medical Examination show the applicant to have been in good health without significant medical history or conditions. e. The applicant was seen for low back pain on 17 April 1967 and this typed encounter is the one in question. It states in part: “1st told of back trouble in March 1964 when applied for job requiring lifting and routine x-ray revealed abnormality which the company said predisposed him to back trouble and they refused to hire him … X-rays back. Will send for official interrelation but seem to be congenital abnormality involving L5.” f. No other medical documentation was submitted with the application and the applicant’s service pre-dates AHLTA. g. JLV shows the applicant has three VA service-connected disabilities; Mood disorder, tinnitus, and impaired hearing. His medical problem list contains a diagnosis of unspecified low back pain. The first lumbar spine imaging study in JLV is an MRI in 2016 which revealed “Significant scoliosis of the upper lumbar spine with convexity to the right of noted with degenerative osteophytosis at multiple levels.” h. The Privacy Rule, part of the Health Insurance Portability and Accountability Act (HIPAA), gives patients, with few exceptions, the right to inspect, review, and receive a copy of their medical records and billing records that are held by health plans and health care providers covered by the Privacy Rule. This includes the ability to request corrections or amendments to these records when a patient believes information in their medical or billing record is incorrect. i. The Privacy Rule provides individuals with this right to have their protected health information (PHI) amended in a manner that is fully consistent with the Correction Principle in the Privacy and Security Framework (See 45 C.F.R. § 164.526). The health care provider or health plan must respond to this request, and if it created the information, it must amend inaccurate or incomplete information. If the provider or plan does not agree to the request, the patient has the right to submit a statement of disagreement that the provider or plan must add to the record. j. It is the opinion of the ARBA Medical Advisor it is likely the applicant had a preservice congenital lumbar spine abnormality. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medial review, the Board concurred with the advising official finding no other medical documentation was submitted with the application. The Board noted, the opine found the applicant had a preservice congenital lumbar spine abnormality. Based on the applicant’s record and opine, the Board determined there is insufficient evidence to support the applicant’s contentions for a physical disability discharge in lieu of honorable release from active duty. ? 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, 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 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, 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 (DES) 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 (Physical Evaluation for Retention, Retirement, or Separation). 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. 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. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 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. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 6. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004684 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1