| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Ms. Margaret K. Patterson | Member | |
| Mr. Arthur A. Omartian | Member |
APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation.
He states that he had no problem with his foot when he joined the Army. His foot started swelling when he wore boots. He could not walk at times because of the pain and swelling. He states that he should receive some compensation for his injury because his foot was never the same after his discharge.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the Army for four years on 24 July 1990 and was assigned to Fort Jackson, South Carolina for training. Prior to his entry on active duty he underwent a physical examination. The 14 October 1989 report of that examination shows that the applicant was physically fit for enlistment. It also showed that he had flat feet.
On 11 August 1990 the applicant was treated at the podiatry clinic at the Fort Jackson medical activity because of a painful toe on his left foot. His condition was diagnosed as a mallet toe deformity to the second toe of his left foot.
A 13 August 1990 Entrance Physical Standards Board (EPSBD) Proceedings found that the applicant’s left second toe was swollen. He had a contracture of that toe at distal interphalangeal joint left. It was a fixed deformity that could not be reduced with passive pressure. His condition was diagnosed as a mallet toe of the second toe of his left foot. The board recommended that he be separated from the Army for failure to meet medical procurement standards. His condition existed prior to his service (EPTS) and was not permanently service aggravated. He did not meet the medical standards for retention in the Army. The applicant’s physical profile serial was 1 1 3 1 1 1. The examining physicians indicated that surgery could help his condition. The medical authority approved the findings of the board. On 17 August 1990 the applicant stated that he concurred with the proceedings and that he requested to be discharged from the Army without delay. The applicant’s commanding officer recommended that the applicant be discharged. On 27 August 1990 the separation authority directed that he be discharged.
On 7 September 1990 the applicant stated that he did not desire a separation medical examination. He was discharged on 7 September 1990 under the provisions of Army Regulation 635-200, paragraph 5-11, because he did not meet procurement medical fitness standards. He had 1 month and 14 days of service.
Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty. Paragraph 5-11 provides for the early separation (within the first six months) of those individuals who were not qualified under procurement medical standards, who manifested symptoms of medical problems that would have made them not qualified under procurement medical
standards or who became not qualified prior to entry. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entry on active duty, which would have permanently or temporarily disqualified him for entry into the military service had it been detected at that time. The character of service for a soldier separated under this paragraph will normally be honorable, or an uncharacterized description of service if in entry level status.
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 while entitled to basic pay.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
There is no evidence, nor has the applicant provided any, to indicate that his condition was incurred while he was in the Army or that it was permanently aggravated because of his military service, and as such there is no basis to award him compensation. There is no basis to correct his record to show physical disability retirement or separation.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 September 1990, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 December 1993.
The application is dated 21 April 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__RVO__ __MKP __ __AAO __ CONCUR WITH DETERMINATION
| CASE ID | AR2002072968 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20021001 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2013 | 20130022251
On 8 February 1995 after careful consideration of the applicant's medical records, laboratory findings, and medical examination, the Entrance Physical Standards Board (EPSBD) found he was medically unfit for enlistment in accordance with current medical fitness standards and the condition existed prior to service in the opinions of the evaluating physicians. He was discharged on 27 February 1995 for failure to meet procurement medical fitness standards under the provisions of Army...
AF | PDBR | CY2012 | PD-2012-00314
Those disabilities include: hypothyroidism, degenerative joint disease: right hip, left hip right knee, and left knee and post‐surgery hammertoes with continued toe numbness. Left Knee and Right Hip Condition. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: VASRD CODE RATING 5099‐5003 COMBINED 10% 10% Right Hip and Left Knee Pain UNFITTING CONDITION The following documentary evidence was...
ARMY | BCMR | CY2012 | 20120000808
The deformity was noted on her enlistment physical, dated 20 May 1997, first symptomatic August 1998, surgery recommended to correct valgus and cock-up toe deformity (proximal osteotomy and resection arthroplasty performed September 1999). Due to the aggravation to her toes while in the service she had two surgeries that left her unfit for service. The evidence of record shows that due to foot pain she had two corrective surgeries.
ARMY | BCMR | CY2005 | 20050006270C070206
The Rating Decision noted the applicant had been "assigned a 10 percent evaluation from the Army at discharge for this condition." This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time. The applicant contended the criteria for assignment of a 10 percent rating was not met by the findings on his active duty entrance examination, presumably...
AF | PDBR | CY2012 | PD2012 00620
The PEB adjudicated the bilateral foot pain and bilateral hallux valgusconditionsas a single unfitting condition, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).The remaining conditions were determined to be not unfitting.The CI made no appeals and was medically separated. The VA rated the bilateral foot condition separately as hallux valgus, coded5280, at 10% for each foot for a combined rating of 20%. BOARD FINDINGS : IAW DoDI 6040.44,...
ARMY | BCMR | CY2011 | 20110016581
The applicant requests correction of the narrative reason of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged. This condition existed prior to service (EPTS). The SPD code "JFM" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay).
ARMY | BCMR | CY2012 | 20120010747
Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. The evidence of record shows in August 1990 an EPSBD found the applicant medically unfit for enlistment in accordance with current medical fitness standards and determined his ganglion cyst existed prior to his entry into military service. The applicant concurred with the...
AF | PDBR | CY2013 | PD2013 00128
The VA, in its rating decision of 7 October 2003, utilized code 5242, degenerative arthritis of the spine, as per the current VASRD rating guidelines in effect at that time.The VA rating decision dated 29 July 2003, 2 months proximate to the date of separation, rated the CI’s condition at 0%, based upon an examination that revealed neither painful nor limited motion. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a...
AF | PDBR | CY2014 | PD-2014-02205
The CI was profiled and permitted to take the Army physical fitness test, alternate aerobic portion.He was issued a permanent L3 profileand referred for a Medical Evaluation Board (MEB).The skin condition (hypertrophic scar)was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.The MEB also forwarded four other conditions (see rating comparison chart below), all judged to meet retention standards.The Informal PEB found the hypertrophic scar on the left foot unfitting and rated it...
AF | PDBR | CY2010 | PD2010-00925
ConditionCodeRatingConditionCodeRatingExam Bilateral Hammer Toe Deformities52820%Bilateral Pes Planus w/ Bilateral Plantar Fasciitis S/P Bilateral Hammer Toe Repair of 2 nd , 3 rd and 4 th Toes527610%20070103Moderate Flat FootCat II↓No Additional MEB/PEB Entries↓Thoracolumbar Strain; DDD L5-S1523720%20070103Right Shoulder Strain5299- 502410%20070103Left Shoulder Strain5299-502410%20070103GERD and Hiatal Hernia734610%20070103Tinnitus626010%200701030% x 2 / Not Service Connected x 120070103...