IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090000440 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).
 
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his previous request that his records be corrected by changing the narrative reason for his discharge to show that his hearing and feet disabilities occurred in the line of duty and therefore they are service connected.

2.  The applicant states, in effect, that he believes his record is in error because the disabilities involving his feet and hearing were incurred/aggravated during his military service.

3.  The applicant provides the following documents in support of this application which were not previously seen by the board: 

		a.  a copy of a memorandum from Dr. W. J--s L---s, a podiatrist-foot specialist dated 3 December 1985,

		b.  a copy of a memorandum from Dr. C----n R-----y, medical doctor, dated 4 August 1986, 

		c.  a copy of an initial patient evaluation dated 23 August 2003, and

		d.  a copy of a clinic note from Dr. J----h S------k dated 7 August 2003.

The applicant provides the following documents in support of this application which were previously seen by the board:

		a.  a copy of his Report of Medical History dated 10 August 1981,

		b.  multiple pages of Standard Forms (SF) 600 (Chronological Record of Medical Care) from February through April 1982,

		c.  a copy of his medical evaluation board (MEB), dated 30 April 1982,

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013991, on
6 March 2008.

2.  The applicant’s military records are not available to the Board.  This case is being considered using the documents provided by the applicant.  

3.  The applicant provided new arguments and new evidence based on the content of the previous Record of Proceedings which merit consideration by the Board.

4.  The applicant enlisted in the Army National Guard on an unknown date and was ordered to active duty for training on 23 November 1981.

5.  The applicant submitted a copy of his Report of Medical History dated 
10 August 1981, which shows in item 11 (have you ever had or have you now) that the applicant left the item "foot trouble" blank.  This is attested to by the applicant's signature.

6.  The applicant submitted copies of Standard Form 600 dated from 8 February 1982 to 23 April 1982, which show that he sought treatment for various foot problems.  The SF Form 600 dated 23 April 1986, shows that the applicant stated that he had a history of foot problems.

7.  The applicant was evaluated by a MEB on 30 April 1982.  He received the following diagnoses:

	a.  Flatfoot, bilateral, line of duty (LD)-No, Existed Prior to Service (EPTS),
	b.  Hallus Valgus, bilateral, LD -No, EPTS, and
	c.  Hammer toe, 2nd left, LD-No, EPTS.

8.  The MEB found he was medically unfit for further military service and recommended that he be separated from military service in accordance with  Chapter 5, Army Regular 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and processed for separation by reason of physical disability which existed prior to entry in the service.  Item 24 shows that the applicant did not desire to continue on active duty.  

9.  On 5 May 1982, the applicant appealed the findings of the MEB and requested evaluation by a Physical Evaluation Board.  

10.  On 14 May 1982, the applicant requested an expeditious discharge for physical disability.  He stated that he understood he would be separated by reason of EPTS physical disability.  

11.  The applicant was discharged from active duty on 3 June 1982, under the provisions of Army Regulation 635-40, Chapter 5, based on physical disability, EPTS - Medical Board, with an honorable discharge.  He completed 6 months, and 11 days of active military service during that period of service.  His DD Form 214 shows he was issued a Separation Program Designator (SPD) code of "KFN," and the narrative reason for his separation was physical disability, EPTS, medical board).  This is attested to by the applicant's signature.

12.  The applicant submitted a copy of a memorandum from Dr. W. J--s L---s, dated 3 December 1985, which states in effect, that the applicant was seen in his office for chronic ankle pain and a painful digit second left foot.  The memorandum states that the applicant stated that he suffered with foot problems most of his life but his military duties made them worse.

13.  The applicant submitted a copy of a memorandum from Dr. C----n R-----y, dated 4 August 1986, which shows that the applicant was examined by him on 
9 July 1986 and 21 July 1986. 

14.  The applicant submitted copies of an initial patient evaluation dated 
23 August 2003, which shows that he requested that his feet be checked.

15.  The applicant submitted a copy of a clinic note from Dr. J----h S------k dated 7 August 2003, which shows that the applicant was referred to him by the Veteran Affairs office in Neshoba Country for the draining of his left ear.  

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code “KFN” as shown on the applicant’s DD Form 214 specifies the narrative reason for an involuntary discharge Physical Disability - EPTS - Medical Board and that the authority for discharge under this separation program designator is 
“AR 635-40, chapter 5."  

17.  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 the Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it states that according to accepted medical principles, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.

18.  DoDI 1338.38, Paragraph E4 (Conditions Presumed to be Pre-Existing) specifies that the occurrence of disease as described in paragraph E.4.a. shall be presumed to have existed prior to entry into military service. E.4.a. specifies that signs or symptoms of chronic disease identified so soon after the day of entry on military service (usually within 180 days) that the disease could not have been originated in that short a period will be accepted as proof that the disease manifested prior to entrance into active military service.  E.6. (Treatment of Pre-Existing Conditions) specifies that generally recognized risks associated with treating preexisting conditions shall not be considered service aggravation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his hearing and feet disabilities occurred in the line of duty and therefore they are service connected were considered.

2.  On 30 April 1982, the MEB found the applicant unfit for military service due to Flatfoot, bilateral; Halloos Valgus; and Hammertoe.  The evidence of record shows that the applicant did not answer the question in his Report of Medical History regarding his foot problems.  The evidence of record shows that the applicant stated that he had foot problems his entire life.  The evidence of record shows that the applicant started seeking treatment for his feet within his first 180 days on active duty.  During his evaluation by the MEB, it was determined that there was compelling evidence to support a finding that his condition (Flatfoot, bilateral; Halloos Valgus; and Hammertoe) EPTS and was not permanently aggravated beyond natural progression by such service.  As a result, he separated from the service in June 1982 due to physical disability without disability benefits (EPTS). 

3.  Although the applicant submitted evidence which shows that he continued to seek treatment for his feet and hearing after his discharge from the Army, there is no evidence in the applicant's available medical records that show he was treated for ear or hearing problems while on active duty.  There is no evidence which shows that the applicant was found unfit for retention due to hearing problems.   

4.  The applicant's DD Form 214 shows he was separated with a separation code of "KFN" in accordance with the governing regulation in effect at the time.  There is no evidence of record and the applicant provides no evidence which shows the narrative reason given to him was in error or unjust.  Therefore, there is no basis for changing his narrative reason for discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_________  _________  ______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X___  ___X___  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 to amend the decision of the ABCMR set forth in Docket Number AR20070013991, dated 4 March 2008.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090000440



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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