MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 AUGUST 2003
         DOCKET NUMBER: AR2003087237

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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, physical disability retirement or separation.

APPLICANT STATES: That he was promised a medical discharge; however, his unit commander refused to act on the doctor's findings. He sustained an injury to his right foot while on active duty and was awarded a profile. He was referred for a discharge and surgery on the same date. His unit refused to accept the doctor's orders. His injury occurred 15 months prior to his general discharge.

Some 12 months after his injury he was granted a profile along with a recommendation for a medical discharge. His profile indicated that he could do no running, jumping, marching; and that he could not take the physical fitness test. He was advised to contact his local Veterans Affairs' hospital for surgery upon returning from his training at Fort Stewart, Georgia. The information was relayed to his commanding officer, who failed to initiate discharge proceedings.

A doctor at Fort Stewart advised him to take measures to protect his health after he informed him that his commanding officer refused to refer him to a Medical Evaluation Board (MEB). He was issued numerous medications for pain and was excused from participating in unit training. Nonetheless, his commanding officer had him perform kitchen police and guard duty for the remainder of his training at Fort Stewart, and he was issued narcotics. That officer made no effort to abide by the doctor's orders. He was ordered to violate his profile. Upon arrival at Orlando, Florida, he was again ordered to violate his profile by participating in unit training. He was issued narcotics for his pain. He requested a medical review, but was denied. He was instructed to continue training. In September he was informed that discharge proceedings would be initiated; however, not until after the September training in order to boost the annual man year count for funding purposes. In July a drug screen (urinalysis test?) was conducted, and he was informed that he would be flagged because of using numerous pain relievers, along with marijuana. In September 2002 he was discharged under honorable conditions. Not until a year later did he discover that the discharge was because of his drug use, and not his injury.

He is under the care of medical personnel at the Veterans Affairs' outpatient clinic in Viera, Florida for his injury. He received surgery to the second metatarsal head, on the second toe of his right foot in December 2001. He has been prescribed prescriptions and continues to use them indefinitely due to the extensive injuries resulting in loss of muscle control, numbness, and daily pain for life. The surgeons believe that with prompt attention from the Army the severity of his injury could have been avoided. The neglect to take decisive action aggravated his injury.

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EVIDENCE OF RECORD: The applicant's military records are those submitted by the applicant.

The applicant was a Reserve soldier who apparently injured his right foot during one station unit training at Fort Leonard Wood, Missouri in March 2000. His status immediately after that is not clear; however, he did return to his Reserve unit and trained with them, to include annual training at Fort Stewart, Georgia, as he states.

A DA Form 2173 (Statement of Medical Examination and Duty Status) dated 17 October 2000 shows that the applicant allegedly injured his right ankle during training at Fort Leonard Wood, Missouri on 20 March 2000. His unit commander indicated that the applicant was requesting follow up treatment for an ankle injury initially sustained on 20 March 2000 and aggravated on 25 March 2000 and 12 May 2000. He was seen at the consolidated troop medical clinic at Fort Leonard Wood on all three occasions. His commanding officer indicated that the applicant had successfully participated in all training activities with the company and passed the Army Physical Fitness Test on 14 July 2000. He conducted physical training with the company during drill on 23 September 2000, but reported to the unit on 28 September 2000, stating that he was having some problems with his ankle and would like to get follow up treatment. The commanding officer indicated that his injury was considered to have been in line of duty.

An undated medical report indicates that the applicant was seen for foot muscles sprains. A 25 March 2000 medical report shows that the applicant complained of ankle pain since 17 March 2000. On 12 May 2000 he complained of foot sprains and toenail fungus. Motrin was prescribed. Another undated record shows that he complained of a twisted right foot with bruise and allergies. His condition was diagnosed as ankle sprain.

The applicant was seen and treated for pain to his right foot on three occasions in April 2001.

A 7 May 2001 radiologic examination report of the applicant's right foot indicated findings which likely represented osteonecrosis of the second metatarsal head consistent with Freiberg disease.

The applicant submits a paper describing Freiberg's disease.

On 3 July 2001 the applicant was discharged from the Army Reserve with a General Discharge under honorable conditions under the provisions of Army Regulation 135-178. The reason for his discharge is unknown.

On 14 December 2001 the Bureau of Veterans Affairs awarded the applicant a 10 percent service connected disability rating for Freiberg's disease, second metatarsal right foot, effective 23 July 2001.

Army Regulation 135-178 establishes polices and procedures governing the administrative separation of enlisted soldiers from the Army Reserve.

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation. Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations.

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

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 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

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. The circumstances concerning the applicant's injury are not known. The evidence indicates that he was treated for pain to his foot while at Fort Leonard Wood. However, he was apparently released from active duty and returned to his Reserve unit, an indication that he was physically fit for separation from active duty.

2. Medical records show that he was treated for his foot pain during training at Fort Stewart and was diagnosed as having Freiberg's disease. There is, however, no indication that the applicant was unable to perform his duties. The applicant's contention that his commanding officer refused to refer him to a Medical Evaluation Board as directed by a doctor has no basis in fact.

3. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes. Absent evidence to the contrary, the applicant's general discharge under honorable conditions is presumed to be correct and in accordance with appropriate regulations.

4. There is no evidence to show that the applicant had any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

6. 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 that requirement.

7. 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

__JNS __ __RWA__ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087237
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030821
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.