IN THE CASE OF:	

		BOARD DATE:	3 September 2009    

		DOCKET NUMBER:  AR20090007580 


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, that her discharge from active duty on 7 October 2002 be changed to a medical discharge instead of completion of required active service.

2.  The applicant states, in effect, that she had surgery on her right heel in April 2002 while she was still on active duty.  After she was released from active duty she had to have two additional surgeries to correct the first surgery.  She has subsequently been granted a service connection for this issue from the Department of Veterans Affairs (VA).  In effect, she believes that her discharge should be for medical reasons since she was no longer able to fulfill her duties due to the results of the first surgery and the ongoing issues that resulted.  She would now like her record corrected to show that she received a medical discharge.

3.  The applicant provides copies of a letter from the VA, dated 29 June 2006; a DD Form 214 (Certificate of Release or Discharge from Active Duty); and numerous documents from her medical record to include but not limited to operation, radiologic examination, laboratory, pathology, and doctor consultation reports.  She also provides doctor consultation reports from Akron City Hospital from November 2002 and October/November 2003 and two DD Forms 2697 (Report of Medical Assessment) in support of this application.




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 records show that she enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 9 May 1996.  She was discharged from the DEP on 2 September 1996 and enlisted in the Regular Army (RA) on 3 September 1996.  Upon completion of basic combat and advanced individual training, she was awarded military occupational specialty (MOS) 92G (Food Service Specialist).  At her request, on 19 October 1998, she was discharged from the active Army for hardship reasons and was transferred to the United States Army Individual Ready Reserve (IRR) to complete her 8 year military obligation.  She was subsequently called to active duty on 9 October 2001 and was released from active duty upon completion of required service on 7 October 2002.  The highest grade the applicant attained while serving on active duty was the rank of private first class (PFC/E-3).

3.  The applicant provides an operation report from the hospital at Fort Leonard Wood, Missouri, dated 11 April 2002, which shows that an exostectomy [surgical excision of an abnormal benign growth on the surface of a bone] was performed on the applicant on the same date.  It further states that the "patient tolerated the procedure well and was taken from the operating room to the recovery room in good condition."

4.  The applicant provides two DD Forms 2697 (Report of Medical Assessment), dated 19 July 2002 and 29 August 2002, respectively.  Both forms are signed by proper Army medical authorities and show in Item 20 that the applicant had surgery on her right heel in April 2002.  The DD Form 2697, dated 29 August 2002, further shows the wording no "sequelae" which is medical terminology essentially indicating that there are no residual medical issues associated with the surgery performed on the applicant's heel in April 2002.

5.  The applicant provides a VA rating decision, dated 29 June 2006, which shows the applicant was granted service-connection for the following conditions with the disability percentage indicated:  Residuals of foot injury, 20 percent and Scars, 10 percent. 

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

7.  Chapter 3 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  

8.  Paragraph 3-2 of the disability regulation contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  A presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  

9.  Paragraph 3-5 of the disability regulation provides guidance on the use of the VA Schedule for Rating Disabilities (VASRD).  It states, in pertinent part, that the percentage assigned to a medical defect or condition is the disability rating.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness.  An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. 

10.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEBD) to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEBD determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of 
severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

11.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards assigned by proper military medical authorities at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should have been separated by reason of physical disability when she was REFRAD on 7 October 2002 was carefully considered.

2.  By regulation, the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  The regulation stipulates that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  

3.  The evidence of record in this case shows that the applicant was REFRAD on 7 October 2002, by reason of completion of required active service.  Competent Army medical authority assessed the applicant's condition prior to her separation and determined there were no residual medical issues associated with her heel surgery conducted in April 2002.  Further, there is no other medical evidence of record that indicates the applicant was suffering from a disabling condition that rendered her unfit to perform her duties, or that would have supported her medical processing through the PDES at the time of her separation from active duty.  

4.  Based on the foregoing, there is insufficient evidence to grant the relief requested.

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 for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20090007580



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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