RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 April 2007
      DOCKET NUMBER:  AR20060009677


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, in effect, that his discharge, for disability
reasons, be changed to a medical retirement.

2.  The applicant states, in effect, that he received a medical discharge
due to injuries sustained in the Army.  He feels he should have received a
medical retirement based on these injuries and the high probability these
injuries will cause a hindrance to his lifestyle and the medical attention
he will need in the future.  He believes he is entitled to full
military/medical privileges.

3.  In support of his application, the applicant provides a copy of copy
one and four of his DD Forms 214, Certificate of Release or Discharge from
Active Duty, and a copy of a letter addressed to him from the Department of
Veterans Affairs (VA) notifying him of the compensation rating decision
made by that agency.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the applicant enlisted in the US Army Reserve, for
8 years, in the Delayed Entry / Enlistment Program on 29 July 1998.  On
13 November 1998, he enlisted in the Regular Army for 6 years.  He
completed his basic combat training at Fort Leonard Wood, Missouri, and
his advanced individual training at Fort Sam Houston, Texas.  On
completion of his training, he was awarded the military occupational
specialty (MOS), 91E, Dental Specialist.

2.  DA Form 705, Army Physical Fitness Test Scorecard, shows that on 18
April, 22 October 2000 and 23 April 2001, the applicant was unable to
participate in an Army Physical Fitness Test (APFT) due to physical profile
assignment limitations. On 6 December 2001, 24 October 2002, and 22 October
2003, the applicant participated in the APFT.  He did push ups and sit ups;
however, was unable to do the 2-mile run.  He did the alternate aerobic
event by walking in each of these tests.

3.  On 11 February 2004, a physical examination of the applicant was
initiated for two purposes – separation and medical board. In preparation
for the physical examination, the applicant completed a DD Form 2807-1
(Report of Medical History).  For each of the items marked "Yes," on this
form, he made an explanatory comment in Item 29 (Explanation of "Yes"
Answers).
4.  On 2 March 2004, the applicant's commander prepared a memorandum
for the President, Physical Evaluation Board, Madigan Army Medical Center,
Tacoma, Washington.  In this memorandum, the commander summarized how he
had come to be assigned to the unit, that he had a physical profile, and
described the applicant's work ethic.  The commander recommended that the
applicant be separated from the Army based upon his physical restrictions
and profile.  He believed this to be in the best interest of the Army and
the applicant.

5.  On 3 March 2004, the applicant was given a physical examination in
preparation for a medical evaluation board.

6.  At the time of his physical examination, a DD Form 2808, Report of
Medical Examination, was completed.  A recommendation that the applicant be
referred to a medical evaluation board was made and approved.  In the
process of the examination, a physical profile of 113111 was entered in its
appropriate space on the form.

7.  On 20 April 2004, the applicant's commander prepared a second
memorandum for the President, Physical Evaluation Board, Madigan Army
Medical Center.  In this memorandum, the commander clarified that at the
time of his earlier written memorandum, the applicant had a temporary
profile stating he could not lift anything over 40 pounds, could not run,
but could march up to 2.5 miles.  Upon further review, his permanent
profile did not include a lifting profile.  The commander stated he had
previously recommended the applicant be separated from the Army based
upon his physical restrictions and profile; however, with a permanent
profile that only states that he can't run but can march up to 2.5 miles,
he could not recommend the applicant's separation from the Army since, it
was his opinion the applicant did have the ability to perform as a dental
assistant in a medical company.

8.  On 20 April 2004, the applicant was evaluated by a medical evaluation
board for chronic bilateral plantar fasciitis, a dorsal ganglion cyst,
and right shoulder tissue pain of unclear etiology.  He was referred to a
physical evaluation board for further adjudication of the duty
limitations listed on his DA Form 3349, Physical Profile.  The evaluation
board determined that he met retention standards for the dorsal ganglion
cyst and the right shoulder tissue pain he was experiencing.

9.  On 4 May 2004, the applicant was issued a permanent profile of 113111
for chronic foot pain.  In addition to those restrictions that were imposed
on the
applicant, he was not allowed to run, jump, march more than one mile, and
was to participate in an alternative physical fitness training program.  In
Item 4.c. of the DA Form 3349, the examining physician marked the block,
"Needs MEB/PEB."

10.  The applicant's case was referred to the physical evaluation board
under cover of a DA Form 3947, Medical Evaluation Board Proceedings.  On
5 May 2004, the applicant stated he did not agree with the findings and
recommendation made by the medical evaluation board and submitted an
appeal.  In his appeal, the stated he was disagreeing because the pain in
his shoulder was not improving and neither was the pain in his back.  He
added that the pain in his knees and right thumb were also extremely
painful when aggravated either by exercise and/or hand dexterity.

11.  On 12 May 2004, the applicant was notified the narrative summary and
his appeal were noted and submitted to the physical evaluation board.  The
applicant acknowledged the response to his medical evaluation board appeal
on 18 May 2004.

12.  On 28 May 2004, the applicant's case was considered by the physical
evaluation board at Fort Lewis, Washington.  After review of the records,
the board determined there was insufficient evidence that the physical
impairment precluded the satisfactory performance of duty by a Soldier of
his rank and primary specialty; accordingly, the board found him fit for
duty under the provisions of Army Regulation (AR) 635-40, paragraph 3-1,
and determined he was, "Fit for duty."

13.  On 14 June 2004, the applicant non-concurred with the board's
findings and recommendation and submitted an appeal.  In his appeal to
the board, the applicant stated, in part, "I non-concur with my physical
evaluation board findings for the following reasons:

   a.  As a Soldier I must be able to work efficiently in both a TOE unit
   and/or DENTAC, but I'm unable to.  Due to my persistent condition,
   in today's Army, I would be considered a non-deployable asset in a
   TOE unit.  My inability to pull my fair share of work would degrade the
   performance and morale of a company such as the 673rd MED CO.  As a
   dental assistant (91E) in a TOE unit, my job performance is not based on
   that of a typical assistant in a DENTAC.  I do not and have
   not performed any of those duties in any capacity.  The jobs that I
   exclusively perform are of lifting and carrying of heavy equipment
   for great distances from one point to another; assembling and
   disassembling of heavy and tall equipment; standing; jumping;
   bending; and/or flexing on my feet for 8-12 hours a day, causing
   additional injury to my numb foot and leaving my other foot in constant
   pain.  The pain that I endure also makes it extremely difficult for me
   to perform my alternate APFT of walking.


   b.  While reviewing my MEB packet, I was unaware of the profile that was
   sent to the PEB.  Therefore, I did not review the profile that was sent.
    It was brought to my attention that my unit had changed my profile, so
   that it was advantageous for the unit, without me ever being present,
   while I was on leave."

14.  On 18 June 2004, the physical evaluation board reconsidered his case
on his appeal and further review of medical documentation.  In a revised
finding, the physical evaluation board determined that his functional
limitations in maintaining the appropriate level of mobility, caused by
the physical impairments made him medically unfit to perform the duties
of a Soldier of his rank and primary specialty.  The physical evaluation
board found the applicant to be physically unfit and recommended a
combined physical disability rating of 0% and advised him that because
his disability was less than 30 percent and he had less than 20 years of
service, AR 635-40 required his separation from service with severance
pay.  The physical evaluation board further advised him since he had
service-connected medical conditions, he should contact a Department of
Veterans Affairs counselor to learn about available benefits such as
disability compensation, rehabilitation programs, insurance programs,
employment assistance, home loans, and medical care benefits.

15.  On 23 June 2004, the applicant concurred with the findings and
recommendation of the physical evaluation board and waived a formal
hearing of his case.

16.  The applicant was reassigned from his unit to the US Army
Transition Center, Fort Lewis, Washington, in accordance with Orders 217-
0014, Headquarters, I Corps and Fort Lewis, Military Personnel Division,
Fort Lewis, Washington, dated 4 August 2004, with a reporting date of 13
October 2004.

17.  The additional Instructions of the above Orders states, in part:

   "a. You are authorized disability severance pay in the pay grade SGT
   based on 5 years, 11 months, and 1 day of service computed under
   section 1208, section 10,United States Code.  b. Percentage of
   disability – 0%.  (paragraph c. omitted). d. Disability is based on
   injury or disease received in LOD [line of duty] as a Result of Armed
   Conflict or cause by an instrumentality of war and incurred in the LOD
   during war period as defined by law:  No [emphasis added]. and e.
   Disability resulted from combat related injury as defined in 26 USC 104:
    No [emphasis added]."

18.  The applicant was discharged for disability, with severance pay, on
13 October 2004, under the provisions of AR 635-40, paragraph 4-24b (3),
for disability, with severance pay.

19.  Item18 (Remarks), of the applicant's DD Form 214, shows he received
$23,893.20, in disability severance pay, on the date of his discharge.

20.  The Department of Veterans Affairs (VA) notified the applicant a
decision had been made on an appeal he submitted to that agency.  The
applicant's entitlement to disability compensation was increased from the
previously established rate to the 70% rate beginning 1 September 2005.

21.  AR 635-40 establishes the Army physical disability evaluation system
and sets forth policies, responsibilities, and procedures that apply in
determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his office, grade, rank, or rating.  It
provides for medical evaluation boards, which are convened to document a
Soldier’s medical status and duty limitations insofar as duty is affected
by the Soldier’s status.  A decision is made as to the Soldier’s medical
qualifications for retention based on the criteria in AR 40-501, Chapter 3.
 If the medical evaluation board determines the Soldier does not meet
retention standards, the board will recommend referral of the Soldier to a
physical evaluation board.

22.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.
23.  Paragraph 4-24, of AR 635-40, pertains to the disposition of Soldiers
by the US Army Human Resources Command (AHRC) upon the final decision of
the Physical Disability Agency (PDA).  It states that PERSCOM will dispose
of the case by publishing orders or issuing proper instructions to
subordinate headquarters, or return any disability evaluation case to the
United States Army Physical Disability Agency (USADPA) for clarification or
reconsiderations when newly discovered evidence becomes available and is
not reflected in the findings and recommendations.  Subparagraph 4-24b(4)
applies to separation for physical disability, existed prior to service,
physical evaluation board (PEB).

24.  Title 38, United States Code, permits the VA to award compensation for
disabilities which were incurred in or aggravated by active service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was referred to a medical evaluation
board for evaluation for chronic bilateral plantar fasciitis, a dorsal
ganglion cyst, and right shoulder tissue pain of unclear etiology.

2.  The evidence shows that initially the applicant was determined to meet
retention standards for all medical issues that were presented.  The
applicant appealed the board's findings and recommendation.  Upon
reconsideration, the board determined he met retention standards for the
dorsal ganglion cyst and right shoulder tissue pain but found him
medically not fit for duty due to his chronic bilateral plantar fasciitis.

3.  In their revised findings, the physical evaluation board found the
applicant to be physically unfit and recommended a combined physical
disability rating of 0%. He was advised that because his disability was
less than 30 percent and he had less than 20 years of service, the
applicable regulation required his separation from service with severance
pay.  The applicant concurred with the board's findings and recommendation.

4.  The applicant has not provided any evidence to show that he was not
properly rated for his disabilities and that his discharge, with severance
pay, should now be changed to a medical retirement.

5.  The evidence shows the applicant was honorably discharged for
disability, with severance pay, and was authorized to receive $23,893.20,
in disability severance pay, on the date of his discharge.

6.  The applicant now feels he should have received a medical retirement
based on the medical difficulties he was evaluated for and the high
probability they will cause a hindrance to his lifestyle and the medical
attention he will need in the future.  However, it should be noted the
medical evaluation and physical evaluation boards made their decisions on
those medical records and the documentation that was presented to them at
the time his case was before them. It should also be noted physical
evaluation boards are fact finding boards whose charter is to investigate
the nature, cause, degree of severity, and probable permanency of the
disability of Soldiers who are referred to the board; therefore, the effect
of the hindrance to his lifestyle and the medical attention he may need in
the future has already been given due consideration.  From the evidence,
the applicant was properly counseled about the need for him to make a claim
with the VA for service-connected disabilities.  That agency is available
to further address his service-connect disabilities, as needed.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___tmr___  ___rn___  ___J____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____John T. Meixell________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060009677                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070417                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |108.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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