IN THE CASE OF:	  

		BOARD DATE:	    7 January 2010

		DOCKET NUMBER:  AR20090011479 


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, referral to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) for a disability rating determination due to a service-connected injury.

2.  The applicant states, in effect, he was diagnosed with bilateral foot pain while serving in the Army and had surgery on his feet to remove bunions, but he continues to experience pain and a lack of range of motion.  He states that he served in Afghanistan, was medically evacuated, and placed on medical hold.  He also states that he was informed he would be referred to a PEB, but never was.  He adds he had no idea that he should have been referred to an MEB/PEB for his medical condition while he was in the U.S. Army.

3.  The applicant provides copies of documents from his Medical Treatment Records.

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.  A DD Form 2808 (Report of Medical Examination) shows the applicant was examined by a physician at the Minneapolis Military Entrance Processing Station, Fort Snelling, Minnesota, on 11 September 2001, for the purpose of enlistment in the U.S. Army Reserve (USAR).  Item 35 (Feet) shows a checkmark in the "Normal" column and "Normal Arch" is circled.  Item 74a (Examinee/Applicant) shows the physician found the applicant qualified for service.

3.  The applicant enlisted in the USAR for a period of 8 years on 12 September 2001 and he was ordered to active duty for training (ADT) on 19 September 2001.  Upon completion of training, he was awarded military occupational specialty 62J (General Construction Equipment Operator).  The applicant was honorably released from ADT on 8 February 2002.  At the time he had completed 4 months and 20 days of net active service.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty in support of Operation Enduring Freedom on 11 February 2004.  He served in Afghanistan from 14 May to         “11 July 2004.”  The applicant was honorably released from active duty (REFRAD) on 15 August 2004 based on completion of required active service and transferred to his USAR unit (i.e., 367th Engineer Battalion, Mankato, Minnesota).  At the time he had completed 6 months and 5 days of net active service; 6 months of total prior active service; and 1 year, 10 months, and 29 days of total prior inactive service.

5.  There is no evidence the applicant was referred to an MEB or PEB during the period of service under review.

6.  In support of his application, the applicant provides the following documents.

   a.  A DA Form 4700 (Medical Record Supplemental Medical Data) and
SF 600 (Consultation Sheet), dated 10 July 2004, that show the applicant was admitted to the Emergency Room at Margetis Medical Center, Ireland Army Community Hospital, Fort Knox, Kentucky, at 2253 hours, 10 July 2004, based on a complaint of bilateral foot pain.  The documents show the applicant had a history of bilateral foot pain for the past two years and had had surgery on his feet to remove bunions, but he continued to experience pain and a lack of range of motion.  It also shows he had been medically evacuated from Afghanistan for further evaluation and treatment, and that the applicant was instructed to report for Sick Call on 12 July 2004 for follow-up and evaluation of his condition.
	b.  Two DD Forms 689 (Individual Sick Slips), two SFs 600, and two Headquarters, U.S. Army Medical Department Activity, Fort Knox, Kentucky, memoranda, that document the applicant's further treatment and consultation services for podiatry on 12 July and 10 August 2004.

   c.  A DD Form 689, DD Form 2807-1 (Report of Medical History), DD Form 2808, and three SFs 600, that show the applicant was examined by medical personnel at the Margetis Medical Center, Ireland Army Community Hospital, Fort Knox, Kentucky, on 14 July 2004, for the purpose of a Medical Board/Other. Item 35 shows an "x" in the "Abnormal" column with the handwritten note "Bunyons on feet s/p sx" and "Normal Arch" is circled.  Item 74a shows the physician found the applicant "is not qualified for service."  Item 77 (Summary of Defects and Diagnosis) shows the handwritten entry "Bunyuns" and Item 78 (Recommendations - Further Specialist Examinations Indicated) shows an entry for a surgical procedure of Bunyunectomy, along with follow-up with Podiatry.

7.  In connection with the processing of this case, the U.S. Army Physical Disability Agency (USAPDA), Washington, D.C, was asked to verify if the applicant was processed by an MEB/PEB prior to his REFRAD.  The USAPDA was not able to confirm that the applicant had been processed by an MEB/PEB.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's REFRAD, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

   a.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), in pertinent part, provides that the mere presence of an 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.

   b.  Paragraph 8-23b, in pertinent part, states that Soldiers separating from the Army will receive a separation medical examination if the Soldier requests it.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  These standards include guidelines for applying them to fitness decisions in individual cases. These guidelines are used to refer Soldiers to an MEB.
   
   c.  Paragraph 4-10 (The MEB) provides that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501, Chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

   d.  Paragraph 4-12 (Informal board) provides, in pertinent part, that each case is first considered by an informal PEB.  Informal procedures reduce the overall time required to process a case through the disability evaluation system.  An informal board must ensure that each case considered is complete and correct.  All evidence in the case file must be closely examined and additional evidence obtained, if required.  In addition, in all informal cases, the PEB Liaison Officer (PEBLO) of the medical treatment facility having control of the Soldier will be the counselor for the Soldier.  As such, the PEBLO is primarily concerned with the Soldier's interests.  The Soldier will be made fully aware of the election options available to him, the processing procedures, and benefits to which he will be entitled if separated or retired for physical disability.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be referred to an MEB and PEB for a disability rating determination due to a service-connected injury because he was found not qualified for service in the Army based upon a medical examination conducted on 14 July 2004.

2.  The governing Army regulation shows that a decision is made as to a Soldier's medical qualification for retention is based on the criteria in Army Regulation 40-501, chapter 3.

3.  Records show that the physician conducting the applicant's medical examination on 14 July 2004 found the applicant not qualified for service.  As such, the applicant should have been referred to an MEB.

4.  There is no evidence the applicant was referred to an MEB or PEB during the period from 14 July 2004 through the date he was REFRAD on 15 August 2004.  In addition, the USAPDA could not produce any evidence that the applicant was referred to an MEB or PEB, or that the applicant declined an MEB/PEB.  Thus, it appears the applicant was REFRAD without being referred to an MEB or PEB for evaluation of his medical condition.  Therefore, it would be appropriate to correct the applicant's records by notifying and affording him the opportunity to have his records reviewed by an MEB/PEB for a determination of fitness based on the diagnosed medical condition(s) documented in his medical records at the time of his separation processing.

BOARD VOTE:

__x_____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring the applicant to an MEB/PEB for further evaluation of medical fitness.

2.  The Board also directs that the Office of The Surgeon General ensure the applicant is notified, referred, and issued Invitational Travel Orders to participate, as appropriate, in a medical review board (e.g., MEB/PEB) process for the purpose of determining his medical fitness at the time he was REFRAD, and if he should be processed for disability rating determination due to a service-connected injury.



      ___________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)                                         AR20090011479



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ABCMR Record of Proceedings (cont)                                         AR20090011479



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