RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050006270


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the 10 percent EPTS (existed prior to
service) disability rating the Army assigned to his condition be changed to
reflect a zero percent rating.

2.  The applicant states the criteria for assignment of a 10 percent rating
was not met by the findings of his active duty entrance examination.  That
examination showed he had hammer toes, hallux valgus (angulation of the big
toe toward the other toes), and pes planus (claw foot), but all those
conditions were listed as "NCD" (not considered disabling).  Those findings
do not support an assignment of a 10 percent disability rating.  It was
unfair and unjust for the Physical Evaluation Board (PEB) to have awarded
him a 30 percent disability rating and then to have subtracted 10 percent
as EPTS.  If his disabilities had been found through his entrance
examination to have met the rating criteria for assignment of a 10 percent
disability rating, then he would have been found unfit for active duty and
his enlistment would have been refused.

3.  The applicant provides a Standard Form 88 (Report of Medical
Examination) dated 18 December 1981; the front page of a Standard Form 93
(Report of Medical History) dated 18 December 1981; a Narrative Summary
dated 25 May 1984; a medical report, date of admission 10 August 1984; page
1 of his PEB Proceedings; and a Department of Veterans Affairs (DVA) Rating
Decision dated 11 December 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 May 1985.  The application submitted in this case is dated
11 April 2005.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant completed an enlistment physical examination on 18
December 1981.  Item 74 (Summary of Defects and Diagnoses) of the Standard
Form 88 indicated the applicant had hammer toes, hallux valgus, and pes
planus but that he could wear boots.  He was found qualified for
enlistment.
4.  The applicant enlisted in the Regular Army on 25 February 1982.  He
completed basic training and advanced individual training (AIT) and was
awarded military occupational specialty 94B (Food Service Specialist).

5.  The Medical Evaluation Board (MEB) Narrative Summary indicated the
applicant had some difficulty wearing leather boots during basic training
because of irritation with the tops of his contracted toes.  He was told to
wait until he got to AIT [to seek further medical help].  When he got to
AIT, he was told to wait until he got to his permanent duty station [to
seek further medical help].  In August 1983, after being assigned to the 2d
Infantry Division, he again complained about problems with his feet.  He
was seen repeatedly at the Podiatry Clinic.  He was fitted for orthopedic
boots.  He reported his feet were most painful in any type of leather foot
gear.

6.  The MEB Narrative Summary indicated the applicant reported having no
treatment for foot problems prior to entering the Army; however, he also
admitted that prior to entering the service he avoided wearing leather
shoes.  By his account, 95 percent of the time he wore tennis shoes, even
for social occasions. The few times he wore leather shoes (primarily to
religious services) he was not comfortable in them and removed them
immediately after.

7.  A physical examination of the applicant revealed dorsal contractures of
toes   2 through 5 on both feet.  The 5th toe, even when weight bearing,
exhibited a proximal phalanx which was absolutely vertical.  Gait analysis
revealed active flexion of toes 1, 2, and 3, and toes 4 and 5 did not even
touch the ground.  Examination of the plantar surface of the foot revealed
hyperkeratodic lesions below the 2d through 4th metatarsal phalangeal
joints.

8.  The applicant was referred to a PEB.  Apparently, the PEB at first
found his foot deformities to be entirely EPTS.  On 26 February 1985, at
the request of counsel, the entire case was reconsidered and the PEB
conceded the condition had been aggravated by military service.  He was
given a 30 percent disability rating, 10 percent of that rating was found
to be EPTS, for a net rating of           20 percent under code 5278 (claw
foot (pes cavus), acquired) of the Department of Veterans Affairs Schedule
for Rating Disabilities (VASRD).  The second page (indicating the
applicant's concurrence or nonconcurrence) of the PEB proceedings are not
available.

9.  On 10 May 1985, the applicant was discharged by reason of physical
disability with severance pay.  His DD Form 214 (Certificate of Release or
Discharge from Active Duty), items 23, 25, 26, and 28 erroneously show he
was
relieved from active duty for training under the provisions of Army
Regulation 635-200, chapter 4 by reason of expiration term of service with
a separation code of LBK (completion of required active service).

10.  The applicant provided a DVA Rating Decision dated 11 December 2002.
The Rating Decision noted his 40 percent rating for hallux valgus foot
deformity, bilateral, was continued.  The Rating Decision noted the
applicant had been "assigned a 10 percent evaluation from the Army at
discharge for this condition." (Presumably, the DVA meant to say the Army
had assigned a 10 percent EPTS evaluation for the condition.)  By their
rules and regulations, they were required to subtract the Army's EPTS
evaluation from their assigned rating.  That is, the DVA found his
condition to be 50 percent disabling but subtracted the Army's     10
percent EPTS rating for a final rating of 40 percent.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purpose of his employment on active duty.
Appendix B, paragraph 10 states that when considering EPTS cases involving
aggravation by active service, the rating will reflect only the degree of
disability over and above the degree existing at the time of entrance into
the active service, less natural progression occurring during active
service.  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.

12.  Army Regulation 40-501 (Standards of Medical Fitness) states that claw
toes and hammer toes that preclude the wearing of appropriate military
footwear are causes for rejection for procurement.

13.  The VASRD is the standard under which percentage rating decisions are
to be made for disabled military personnel.  The VASRD is primarily used as
a guide for evaluating disabilities resulting from all types of diseases
and injuries encountered as a result of, or incident to, military service.
Once a Soldier is determined to be physically unfit for further military
service, percentage ratings are applied to the unfitting conditions from
the VASRD.  These percentages are applied based on the severity of the
condition.

14.  The VASRD gives code 5278 a 10 percent rating when the great toe is
dorsiflexed, with some limitation of dorsiflexion at the ankle, and
definite tenderness under the metatarsal heads (unilateral or bilateral).

DISCUSSION AND CONCLUSIONS:

1.  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 because his foot deformities (hammer toes, hallux valgus, and
claw foot), were listed as "NCD".

2.  However, it is also noted the entrance examination found that the
applicant could wear boots.  It appears the applicant never informed the
examining officials what he later informed the MEB, i.e., that prior to
entering the service he avoided wearing leather shoes, 95 percent of the
time he wore tennis shoes even for social occasions, and the few times he
wore leather shoes he was not comfortable in them and removed them
immediately after.  Had he done so, presumably he would have been found to
have been not eligible for enlistment.

3.  Although the applicant was accepted for enlistment, it appears he
clearly met the VASRD standards for a 10 percent EPTS disability rating.
There is no evidence of Government error in the assignment of his
disability rating.

4.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 May 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 May 1988.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __phm___  __ljo____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  __John N. Slone________
                                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006270                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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