MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002071508

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Lee Cates		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger W. Able		Member
Mr. Curtis L. Greenway		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his records be corrected to show a mental disorder diagnosis and a more serious diagnosis of his lower extremity disability.

APPLICANT STATES: In effect, that his mental disorder diagnosis was not included in his discharge processing. Further, the seriousness of flat feet, right ankle injury, pain of flat feet, right ankle and psychological disorder was not indicated. He shows a Veterans Administration (VA) hospital report indicating his psychological disorder was bipolar. He also indicates he never denied a serious illness. The applicant further indicates he has exhausted all medical channels in seeking this correction and has not been counseled by a representative who knows about a medical discharge. Medical discharge soldiers have more rights than a court-martial or general discharged soldier. He has learned to tolerate pain.

On two DD Forms 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 22 March 2002, the applicant indicates that he served on active duty in the U. S. Army, not the VA. He indicates he was allowed only about 10 to 15 minutes before the medical board. He thought about how to write friends in the Army in Washington, D.C. with injuries that were minor. His doctor did not operate on his ankle in Germany to try to reduce the pain. He has learned to tolerate the pain. The VA did perform an operation to try to reduce the pain. He now wears inserts and supports around his right ankle. The diagnosis of disorder is typed at the bottom of a page over other typing at the bottom of a page. He believes the Army and other military doctors were required to have national certification in 1987. Many could not pass the national certification; as a result they became doctors in the active military and the VA. If your doctor liked you he or she would be given 30 percent or more disability to receive an identification card or a monthly check. He found out about the facts when he flew from Germany to Walter Reed Hospital. He believes two separate doctors in the active Army should examine one’s body.

In support of his claim, he provides: 1) Optional Form 275 (Medial Record Report) (Medial Evaluation Board Summary), dated 11 December 1986; 2) a copy of the Formal Physical Evaluation Board (PEB) Proceedings, dated 24 July 1987; 3) Standard Forms 413 (Consultation Sheet) showing appointments with nuclear medicine, orthopedic, physical therapy, podiatry and psychology; 4) an appeal to the VA for a bipolar condition; 5) a medical board physical examination, dated 22 October 1986; a copy of a physical profile for pes planus, bilateral severe, dated 18 March 1987; and, 6) a decision from the VA to award service connection for residuals, right ankle fracture, postoperative, 20 percent and bilateral pes planus, 10 percent.

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

During the period 26 June 1973 to 22 September 1974, the applicant served in the Air Force Reserve.

During the period 23 September 1974 to 2 September 1979, he served in the Marine Corps Reserve.

On 9 December 1980, he enlisted in the Regular Army. He completed his required training at Fort Sam Houston, Texas and was awarded military occupational specialty (MOS) 91S (Environmental Medical Specialist).

Medical records dated 7 September 1982, show the applicant injured his right ankle making a PLF (parachute landing fall) on 14 July 1982, while assigned to the 926^th Medical Detachment, Fort Benning, Georgia.

On 22 October 1984, he was reclassified into MOS 24L (Hawk Launcher and Mechanical Systems Repairer).

On 5 November 1986, his commander requested a medical evaluation of the applicant’s prior injuries that were making it impossible for him to perform his MOS without experiencing considerable pain.

On 22 October 1986, he completed a physical examination for the purpose of a Medical Evaluation Board (MEB). His summary of defects and diagnosis was pes planus with cold sensitivity of his right ankle and recommended separation from the service.

On 9 December 1986, an MEB Summary indicated he applicant’s diagnosis as “pes planus secondary to contracted tendo-achillis” and recommended separation as being in the best interest of the service. The applicant denied any serious illnesses at this time.

On 23 December 1986, a Consultation Sheet for the purpose of diagnosis of pain in his ankles/feet shows he was hysterical and ordered psychological testing. The applicant denied psychological factors.

On 9 February 1987, a MEB Proceeding indicated a diagnosis of pes planus associated with mild contraction of the tendo-achilles. The MEB recommended this case be referred to a Physical Evaluation Board (PEB). The applicant agreed with the MEB findings and recommendation.

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On 18 March 1987, he was issued a DA Form 3349 (Physical Profile Board Proceedings) indicating he had been issued a permanent 4 under the lower extremities and his assignment limitations were no jumping, no marching, no running and no strenuous physical activity.

On 10 April 1987, Informal PEB Proceedings concurred with the MEB and found the member to be physically unfit. The PEB recommended a disability rating of 20 percent and his separation with severance pay for “right pes planus associated with mild contraction of the tendo achilles”.

On 6 June 1987, the applicant demanded a formal hearing and provided a statement in his own behalf.

On 24 July 1987, a Formal PEB indicated a review of all the medical evidence of record, presentation of counsel, testimony of the soldier, and three items of additional medical information and one exhibit provided by the applicant was conducted. The findings and recommendations remained the same as the Informal PEB. The applicant, by his signature, agreed with the recommendation(s) on the same date.

On 11 September 1987, the applicant was honorably discharged under Army Regulation 635-40, paragraph 4-24e(3), based on physical disability with severance pay ($17,396.40). His DD Form 214 indicates he had 7 years, 5 months, and 29 days of creditable service.

On 11 February 2002 the VA notified the applicant his disability rating was 20 percent for residuals, right ankle fracture, postoperative and 10 percent for bilateral pes planus. Since the applicant provided only the first page, the combined service-connection percentage is not shown. Also, this document also shows denial of service-connection for nerve damage due to exposure to Malathion and right elbow injury.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

Title 10, United States Code, chapter 1201, provides for the disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent disabling.

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

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

1. There is no evidence in the available records of a psychological disorder diagnosis by the Army or the VA.

2. There are no provisions where the diagnosis of a condition of an individual being separated by reason of physical disability will be included on their DD Form 214.

3. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

4. The medical diagnosis of the applicant’s disabilities appears complete and his disability separation appears proper. He has not shown otherwise.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement

6. 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

_MMD__ _RWA___ _CL____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002071508
SUFFIX
RECON
DATE BOARDED	20020820
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108
2.
3.
4.
5.
6.