The DD Form 214

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					ABCMR Memorandum of                                 AC95-05495
Consideration (cont)

APPLICANT REQUESTS: That his honorable discharge be corrected to
a medical retirement.

APPLICANT STATES: That he has a history of injuries to his lower
back and he had a tumor removed from his spinal cord area on 13 February
1993. He states that immediately following his discharge in February
1992, the VA awarded him a service connected disability rating.
He chronicles his back problems, dating the origin of his back
problems to an injury he suffered while negotiating the obstacle
course at the Marine Corps officers candidate school in February
1967. His back problems remained a constant problem, frequently
resulting in his being given bed rest. Subsequent to his discharge
from the Army in 1992, he began to notice a gradual increase in low
back discomfort which, by November 1992, had become a serious
interference to his normal daily activity.

In support of his application he submits copies of selected medical
records from his file, copies of VA documents pertaining to rating
decisions, and a Social Security Administration (SSA) ruling awarding
him $1102.00 a month in disability compensation. In the SSA
decisional document it is stated that the applicant initially alleged
his disability began on 29 February 1992, but later amended that
date to 1 November 1992. That document also shows that the applicant
first reported pain in his mid to low back in June 1991 and was
diagnosed as having a herniated L4-L5 disc for which he was treated
conservatively. He was later diagnosed as having a tumor at the
L1 level on his spine, for which he underwent surgery on 1 March
1993. The SSA determined that the applicant suffered from major
depression, Post-traumatic Stress Disorder, and chronic back pain,
post laminectomy.

EVIDENCE OF RECORD: The applicant's military records were not
furnished to the Board. The following information was derived from
selected records provided by the applicant.

He enlisted in the Regular Marine Corps on 10 December 1964, served
as an aviation fire control technician, and on 2 February 1967, he
was treated for pain and tenderness between his shoulder blades and
radiating pain to his low back and into his neck and arms, resulting
from him twisting his neck. The physician treating the applicant
considered him to be in acute distress, stating that his range of
motion was limited almost completely. The applicant was put to bed
on a bed board, and given cervical traction, muscle relaxants and


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ABCMR Memorandum of                              AC95-05495
Consideration (cont)

heat to the effected   area. His symptoms gradually subsided and he
was released to duty   on 15 February 1967. He completed officer
candidate school and   was honorably discharged on 1 June 1967 due
to his commission as   a second lieutenant, Marine Corps Reserve.

The applicant remained on active duty in the Marine Corps in his
commissioned status. On 16 January 1968 he underwent a physical
examination as a Naval Aviator Candidate. In that examination he
was found to be medically qualified for retention with no physical
profile restrictions, and was found physically qualified and
aeronautically adapted for duty involving flying as a Naval Flight
Officer, but not qualified for duty involving action control of
aircraft because of defective depth perception. On 14 February 1968
he had a second flight physical examination in which he was again
found fully qualified for duty without profile limitations. On that
physical he denied having recurrent back pain.

On 18 April 1969 he was given an annual physical examination in which
he was found medically qualified without profile limitations.

On 5 August 1969 he was given another physical examination for
determination of flight training acceptability. This examination
determined that he was medically qualified for retention without
profile limitations, and was physically qualified and aeronautically
adapted for duty involving actual control of aircraft, but was not
considered to meet Air Force flight training standards because of
a history of allergic rhinitis subsequent to age 12 years, and a
history of head injury with episode of amnesia, age 17 years. On
that physical he again denied having recurrent back pain.

On 6 May 1970 he was given a physical examination in conjunction
with his pending release from active duty. He was again found to
be medically qualified for retention without profile limitations.


The applicant was honorably released from active duty on 1 June 1970
at the expiration of his active duty obligation and transferred to
the Marine Corps Reserve. He had served as an air defense control
officer, had been promoted to first lieutenant, and had served in
Vietnam.

The next record of the applicant performing extended active duty
was on 3 September 1985 when he entered on active duty in the Active


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ABCMR Memorandum of                               AC95-05495
Consideration (cont)

Guard and Reserve (AGR) program. His specialties included armor,
force development, and operations, plans and training. He was
promoted to lieutenant colonel.

On 25 April 1990 he had a periodic physical examination in which
he was found medically qualified for retention without profile
limitations. On that physical he again denied having recurrent back
pain.

On 29 February 1992 he was honorably released from active duty by
reason of his failure to meet minimum standards for retention. In
conjunction with his separation, on 22 January 1992 he was given
a physical examination. On that examination he denied depression
or excessive worry and nervous trouble of any sort, but claimed to
suffer from recurrent back pain. The DD Form 214, Certificate of
Release or Discharge from Active Duty, he was issued at that time
shows that he had 6 years, 5 months and 28 days of active service
during that period, and he had 8 years, 4 months and 2 days of prior
active service. He also had 12 years, 4 months and 21 days of prior
inactive (reserve duty not on active duty) service

Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part,
that if a existing prior to service (EPTS) condition was aggravated
by military service, the finding will be in line of duty. If an
EPTS condition is not aggravated by military service, the finding
will be not in line of duty, EPTS. Specific findings of natural
progress of the
pre-existing injury or disease based on well established medical
principles alone are enough to overcome the presumption of service
aggravation. This paragraph also specifies that a disease or injury,
or underlying condition, is considered to be EPTS if it existed before
military service or it happened between periods of active service.

Army Regulation 635-40, the regulation which governs physical
evaluation boards (PEB’s), paragraph 4-19b, states that a PEB may
decide that a soldier’s physical defect was EPTS, but must then
determine whether the condition was aggravated by military service.
 If the PEB determines that a soldier has an unfitting EPTS condition
which was service aggravated, the PEB must determine the degree of
disability that is in excess of the degree existing at the time of
entrance into the service. The method of determining the percentage
of disability to be awarded in such cases is outlined in appendix
B, item B-10 of this regulation.


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ABCMR Memorandum of                               AC95-05495
Consideration (cont)


Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to
perform the duties of his office, rank, grade or rating because of
disability incurred during a period of active or inactive duty.

The Army disability rating system reacts based upon the service
member’s physical status at a given point in time while the individual
is on active duty. To be separated for physical disability, a soldier
must be physically unfit to perform the duties of his rank and grade.
 If a disability rating is awarded by the Army, it is permanent and
will not change. Unlike the military, the disability ratings of
other agencies are not contingent on fitness for military duty and
may fluctuate based upon an individual’s physical condition at the
time of last physical examination. Disability ratings awarded by
the Army are not based upon the same principles as other agencies
and, consequently, those agencies may award disability benefits when
the Army does not or, if the Army grants disability benefits, the
ratings awarded by those agencies may differ from those awarded by
the Army. If a soldier’s physical condition deteriorates after he
is discharged from the Army, his disabilities are properly addressed
under other disability systems.

DISCUSSION: Considering all the evidence, allegations, and
information presented by the applicant, together with the evidence
of record and applicable law and regulations, it is concluded:

1. The applicant was never determined physically unfit. Without
such a determination, he was not eligible to receive a separation
due to physical unfitness.

2. It is noted that the applicant has stated that his back problem
has bothered him since February 1967, yet he has had at least seven
physical examinations since that date, all of which (with the possible
exception of his last physical examination, as the portion of the
physical which shows profile limitations was not provided to the
Board by the applicant) found him medically qualified without profile
restrictions. Other than the applicant’s final physical
examination, he denied having recurrent back pain. Since his injury,
he has been commissioned, has been promoted to lieutenant colonel,
and has performed almost 15 years of active duty and almost 12 1/2
years of inactive duty. That record is not indicative of an



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ABCMR Memorandum of                               AC95-05495
Consideration (cont)

individual who is physically unfit to perform the duties of his office
and grade.

3. Also, the applicant himself stated to this Board in his
application, and during his hearing for an SSA disability, that he
had been disabled since 1 November 1992, 7 months after his release
from active duty. Since the applicant has not claimed or shown
service aggravation of his injury, an injury he incurred during a
prior period of service, he has properly petitioned the VA and the
SSA for disability benefits. Injuries incurred during prior periods
of service cannot be used for the basis of a disability separation
unless those conditions can be shown to be service aggravated.
4. In view of the foregoing, there is no basis for granting the
applicant’s request.

DETERMINATION: The applicant has failed to submit sufficient
relevant evidence to demonstrate the existence of probable error
or injustice.

BOARD VOTE:

                        GRANT

                        GRANT FORMAL HEARING

                        DENY APPLICATION




                                Karl F. Schneider
                                Acting Director




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