RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070003748 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James Vick

Chairperson

Mr. Ronald Gant 

Member

Mr. Rowland C. Heflin

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 honorable discharge, by reason of physical disability, with severance pay, be changed to show that he was placed on the Temporary Disability Retired List (TDRL).

2.  The applicant states, in effect, that although the PEB (Physical Evaluation Board) evaluated his condition as 20 percent disabling, the VA rated his condition as being 30 percent.

3.  The applicant provides a copy of his VA (Veterans Administration) rating decision and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 24 January 1997, in pay grade E-3, in military occupation specialty (MOS), 11C, Indirect Fire Infantryman, with prior service in the Army National Guard (ARNG).  He was advanced to pay grade E-4 effective 22 December 1998.

3.   The applicant was issued a permanent profile of 113111, on 18 June 1998, due to heel pain.  His profile assignment limitations were no running or jumping.  His APFT (Army Physical Fitness Test) consisted of push-ups, sit-ups, and the alternate aerobic events of swimming or bicycling.

4.  The applicant appeared before an MOS/Medical Retention Board (MMRB) on 24 July 1998, without counsel.  The MMRB recommended that he be referred to an MEB (Medical Evaluation Board)/PEB for further evaluation and disposition.

5.  On 29 July 1998, the applicant replied to the MMRB.  He requested that the MMRB recommendations be reconsidered and changed to a recommendation that he be reclassified.  His reasons he stated were he felt that:  he could perform and excel at other MOS's; he had invested 4 years in the Army; he could perform PT (physical training) and complete an APFT (Army Physical Fitness Test) with an alternate event; he was a career minded Soldier; and the Army needed the quality and enthusiasm that he could share.  

6.  On 24 September 1998, the applicant's commander prepared a memorandum for the PEB Liaison Officer.  He indicated that the applicant was not pending adverse action and he was not currently flagged.  In his opinion, the applicant could not perform those basic tasks of MOS 11C.  His disability impacted on the performance of his duties in his primary MOS in the following manner:  (a) He could not run or lift greater than 40 pounds.  All dismounted drills were conducted at a run or trot.  He could not conduct the following:  (b) react to indirect fire (battle drill); (c) react to direct fire; (d) transport a casualty; or (e) conduct air assault operations.  The applicant could not run to or from a helicopter; (f) conduct tactical road march/move tactically; and (g) perform sentry duty.  The applicant could not stand or walk for extended periods.  

7.  The commander stated that he was an above an average Soldier, but due to his physical impairments he could no longer function and his impairment prevented this unit from utilizing him in any productive manner.  His injury had prevented him from fulfilling the requirements of MOS 11C.  In conclusion, he recommended that the applicant be processed and reassigned an MOS that he could successfully accomplish with his medical profile.

8.  On 21 October 1998, the applicant was given a physical examination for the purpose of an MEB.  He was assigned a physical profile of 113111.

9.  On 22 December 1998, the applicant's case was considered by an MEB.  The MEB diagnosed the applicant as having chronic plantar fasciitis with secondary metatarsalgia fifth metatarsal bilateral which was refractory to medical treatment and interfered with the performance of his military duties and prevented extended wear of military shoe gear.  This diagnosis was medically unacceptable in accordance with Army Regulation 40-501.  His ailments were ruled to have been incurred in the line of duty (LOD), while he was entitled to base pay, and none existed prior to service (EPTS).  The applicant indicated that he did not desire to continue on active duty.  The findings and recommendations were approved on 7 January 1999.  The applicant concurred on that date.  The MEB recommended that the applicant be referred to a PEB.
10.  On 8 January 1999, the applicant appeared before an informal PEB.  He was diagnosed as having bilateral plantar fasciitis.  The PEB stated that based on a review of the objective medical evidence of record, it found the applicant's medical and physical impairment prevented reasonable performance of duties required by his grade and MOS.  The PEB found the applicant physically unfit and recommended a combined rating of 20 percent with severance pay.  The PEB indicated that his separation was not based on a disability resulting from an injury received in the line of duty as a direct result of armed conflict or caused by an instrument of war and incurring in the LOD during a period of war as defined by law.  The applicant concurred with the results of the PEB and waived a formal hearing of his case on 12 January 1999.  

11.  He was honorably discharged on 4 March 1999, under the provisions of Army Regulation 635-40, paragraph 4-24b(3), disability with severance pay.  He completed 2 years, 4 months, and 13 days of creditable service.  Item 18 (Remarks), of his DD Form 214, states that he was paid severance pay in the amount of $5,714.40.  

12.   The applicant provides a copy of his VA Rating Decision, dated 23 January 2006, which shows that he was granted a 30 percent service connected disability, for bilateral plantar fasciitis, with secondary metatarsalgia and shin splints.  He was also rated for several other service and non-service connected conditions and was granted a combined rating of 50 percent. 

13.  Army Regulation 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.

14.  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.

15.  Paragraph 4-24 of Army Regulation 635-40 pertains to disposition by the Total Army Personnel Command (PERSCOM) 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(3) applies to separation for physical disability with severance pay.  Subparagraph 4-24b(2) applies to placement on the TDRL.

16.  Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating. 

17.  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. 

18.  Furthermore, 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 must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

19.  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 applicant was issued a permanent profile of 113111 due to heel pain, while serving in MOS 11C, Indirect Fire Infantryman.  His profile indicated no running or jumping.  He appeared before an MMRB that recommended he be referred to an MEB/PEB.  He replied to the MMRB's recommendations and requested that he be reclassified and provided his reasons to support his reclassification.

2.  The applicant appeared before an MEB.  He was diagnosed as having chronic plantar fasciitis with secondary metatarsalgia fifth metatarsal bilateral which was refractory to medical treatment and interfered with the performance of his military duties and prevented extended wear of military shoe gear.  His diagnosis was medically unacceptable in accordance with regulation.  His condition was determined to have been incurred in the LOD, while entitled to base pay, none EPTS.  He indicated that he did not desire to continue on active duty.  He was referred to a PEB. 

3.  The PEB found the applicant unfit for military duty in accordance with regulation and recommended a combined rating of 20 percent with severance pay. The PEB found that his medical and physical impairment prevented reasonable performance of duties required by grade and MOS.  He conconcurred with the results of the MEB and PEB and waived a formal hearing of his case. 

4.  The applicant was discharged under the provisions of Army Regulation     635-40, paragraph 4-24b(3), disability with severance pay.  He was paid disability severance pay in the amount of $5,714.40.  

5.  The applicant alleges that his honorable discharge should be changed to show that he was placed on the TDRL.  The evidence shows that he did not desire to continue on active duty when he appeared before the MEB.  The MEB determined that his condition interfered with his performance of duties and prevented wear of military shoe gear which was medically unacceptable in accordance with regulation.  The PEB concurred with the MEB's results and recommend separation with severance pay.  The applicant concurred with this recommendation.   

6.  There is no evidence or indication that the applicant's disability was sufficiently stable to be rated permanently, or that it could improve to the point where he could be returned to active duty.

7.  The applicant has not provided any evidence to show that he was not properly rated for his disabilities.

8.  The applicant applied to VA after his release from active duty.  He was awarded a combined rating of 30 percent for his service-connected disability for bilateral plantar fasciitis with secondary metatarsalgia and shin splints.

9.  The applicant contends that his 20 percent disability rating by the Army should coincide with VA's rating of 30 percent for the same condition.

10.  In accordance with governing laws, the VA is the Department responsible for compensating veterans when service-related physical conditions cause social or industrial impairment after a Soldier's discharge.

11.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings based on those policies and regulations and have no bearing on what the Army did in processing the Soldier for medical separation.  

12.  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

___RCH _  __JEV __  _RG ____  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.




____James E. Vick________________
          CHAIRPERSON




INDEX

CASE ID
AR20070003748
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070919
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19990304
DISCHARGE AUTHORITY
AR 635-40, para 4-24b(3). . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108
2.

3.

4.

5.

6.