APPLICANT REQUESTS:  Reinstatement to active duty at the grade he held at the time of his discharge, consideration for retroactive promotion, and retirement for years of service with credit for 20 years of active duty. 

APPLICANT STATES:  The military physician who examined him told him that if he stayed in the Army he would be in a wheel chair by the time he was 40 years old.  He was so scared by that statement that he contested the recommendation of his physical evaluation board (PEB) to retain him on active duty.  Subsequent to his discharge his feet have completely healed and he has returned to a fully active lifestyle, which includes lengthy runs and working construction.  He maintains that his disability was temporary and he should have been retained on active duty and given light duty to allow for his feet to heal, as they have since his discharge.  If that had occurred, he would now be receiving a military retirement.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered on active duty on 25 October 1974 with over 2 years of active service, was awarded the military occupational specialties of helicopter repairman and intelligence analyst, was awarded the Parachute Badge, served continuously through reenlistments, and was promoted to pay grade E-7.  

On 13 February 1986, while the applicant was performing duties as an intelligence analyst assigned to an airborne psychological operations battalion, a medical evaluation board (MEB) was convened and found the applicant to have incurred numerous injuries to his feet during parachute jumps, and diagnosed him as having degenerative joint disease of both mid-tarsus (the region of the articulation between the foot and the leg) secondary to congenital pes cavus (exaggerated height of the longitudinal arch of the foot).  The MEB noted that the applicant had a permanent physical profile due to his feet and could not run any further than 100 yards without difficulty.  The applicant concurred with the MEB findings and was referred to a PEB. 

On 22 April 1986 a PEB convened and found the applicant physically fit to perform the duties of his military occupational specialty and grade and recommended that he be returned to duty.  The applicant disagreed with that finding and recommendation and demanded a formal hearing.  In that rebuttal to the PEB he stated that he was not physically capable of performing his duties as a noncommissioned officer leading men, and could not perform his duties as a parachutist.  He argued that a noncommissioned officer performs many more duties and functions than those listed in the Army regulation which governs military occupational specialties.

On 18 June 1986 the applicant withdrew his demand for a formal hearing and stated that he accepted the findings of his informal PEB.

On 7 July 1986 the Physical Disability Agency (PDA) reviewed the applicant’s informal PEB and determined that his disability was improperly assessed, that he was in fact physically unfit.  The PDA assigned him a rating of 20 percent and directed that he be discharged with severance pay.  The applicant agreed with that finding and recommendation.

Accordingly, on 25 August 1986 the applicant was honorably discharged in pay grade E-7 and received $37,036.80 in disability severance pay.

On 2 September 1986 he submitted a disability claim to the VA.  The VA granted him a service connected disability rating of 30 percent for bilateral pes cavus with traumatic arthritis.  On 2 January 1989 the VA reduced his disability rating to 10 percent.  The applicant appealed that reduction, stating that his feet may have “a more severe arthritic problem than previously indicated and should warrant further investigation prior to the reduction in the rating.”  His appeal was denied.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  Unlike the Army which assigns a permanent disability rating which never changes regardless of the improvement or deterioration of the disability, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Office of The Surgeon General (OTSG).  The OTSG points out that the applicant accepted the decision to discharge him with a 20 percent disability rating.  The OTSG also states that the probability for reinjury would have been high if he had remained on active duty, especially if he continued to jump from airplanes.  The OTSG recommended denial of the applicant’s request. 

In response to the advisory opinion, the applicant submitted an addendum to his request, pointing out some errors in his military history as outlined by the OTSG.  The applicant also states that he had accepted his discharge because he was concerned that his condition was more severe than it actually turned out to be.  As for the OTSG’S comment concerning his condition worsening if he participated in airborne (parachute) duties, the applicant points out that he could not parachute due to his physical profile limitations.  He reemphasizes at this point that he could have been assigned to a non-airborne duty assignment, such as an instructor, which would have allowed for his feet to heal.  The applicant also states that where most veterans go to the VA to request that their disability ratings be increased, he only went to tell the VA that he was “fine.”

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

1.  The significant events in this case appear to be:

	- that the applicant appealed an informal PEB’s finding that he was fit for duty, stating that he could not perform his duties as a noncommissioned officer;

	- that he accepted the PDA’s ruling that he was physically unfit and that he should be discharged with severance pay, rated 20 percent disabled;

	- that he filed for and received a VA disability within a month of his discharge;

	- that he appealed the VA’s ruling which later reduced his disability rating, stating that his feet may have “a more severe arthritic problem than previously indicated and should warrant further investigation prior to the reduction in the rating”; and

	- that he waited for a prolonged period of time before he submitted an application to the Board, an application wherein he requests reinstatement to active duty with back pay.

2.  It appears to the Board that the applicant received exactly what he asked for from the Army.  While it is understandable that he has now had a change of heart and regrets his previous decisions, it is not a basis for granting his request.

3.  The applicant, by his own admission, could not perform the duties of his rank and grade.  As such, the finding of unfitness was appropriate.  As for the allegation that his disability was temporary, the condition which caused the disability is structural, a high arch, and does not appreciably change in time.  While the injuries which were caused by his high arch healed over time, given a low stress environment, the propensity for new injuries is, as the OTSG stated, high.  As such, his discharge was also appropriate. 

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