IN THE CASE OF:	

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016301


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 correction of his records to show he was medically retired instead of honorably discharged as a result of a physical disability which existed prior to service.

2.  The applicant states his disabilities did not exist prior to his enlistment; they are the result of injuries suffered on active duty.  His processing through the physical disability evaluation system (PDES) occurred while he was stationed in Darmstadt, Germany and the physical evaluation board (PEB) was in Heidelberg.  Because everything was done by facsimile and not face-to-face, he was not properly counseled.  He adds the Department of Veterans Affairs (VA) has rated him 30 percent disabled for service-connected disabilities.

3.  The applicant provides:

	a.  a copy of his 4 December 2004 DD Form 214 (Certificate of Release or Discharge from Active Duty);

	b.  a copy of a VA Rating Decision, dated 22 January 2007; and 

	c.  a counsel statement provided by the American Legion.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

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 served in the Regular Army from 16 March 2000 through 4 December 2004.  He was a Russian linguist working as a human intelligence gatherer.

3.  The applicant entered the PDES in 2004 because of low back pain (LBP) and foot pain.  A Narrative Summary (NARSUM), based on a 30 July 2004 physical evaluation, shows his chief complaints as dextroscoliosis, left foot plantar fasciitis, and status post facial trauma.  Dextroscoliosis was determined to be congenital, thus it existed prior to service (EPTS).  His foot pain was evaluated as tender about the heel, otherwise unremarkable.  Radiographs showed a heel spur, otherwise the foot series was unremarkable.  Ranges of motion (ROM) measurements were also taken for both feet (ankles) and were found to conform to normal limits.  The examining physician also noted that the applicant previously had oral surgery for open reduction of a left zygomatic arch (cheekbone) fracture.  This was referenced in a report from the oral surgeon and was not further discussed.

4.  On 20 August 2004, a medical evaluation board (MEBD) convened at the U.S. Army Medical Activity-Heidelberg, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD found that the applicant had two medical conditions – dextroscoliosis and bilateral plantar fasciitis.  The MEBD recommended that he be referred to a PEB.  The applicant indicated he did not desire to continue on active duty. 

5.  On 13 September 2004, an informal PEB convened at Washington, DC, and found the applicant's chronic LBP without any specific history of trauma or injury prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit.  The chronic LBP was attributed to dextroscoliosis, a congenital condition which was EPTS.  It was rated at zero percent under the VA Schedule for Rating Disabilities (VASRD) code 5237 (lumbosacral or cervical strain).  The bilateral plantar fasciitis was evaluated and found to be not unfitting.

6.  On 15 September 2004, the applicant concurred with the PEB and waived a formal hearing.  The applicant's decision, recorded on DA Form 199 (PEB Proceedings), was witnessed by the PEB Liaison Officer (PEBLO) on the same date.  This occurred in Darmstadt, Germany.

7.  On 4 December 2004, the applicant was honorably discharged in accordance with paragraph 4-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of "disability existed prior to service, physical evaluation board (PEB)."  

8.  On 22 January 2007, the VA awarded the applicant a disability rating of 10 percent for low back strain, 10 percent for residual pain from the broken cheekbone, and 10 percent for a left plantar calcaneal heel spur.

9.  The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

10.  The VASRD Table of Analogous Codes gives plantar fasciitis the codes 5399 and 5310, intrinsic muscles of the foot (including ligaments and tendons) a 30 percent rating when severe; a 20 percent rating when moderately severe; a 10 percent rating when moderate [the US Army Physical Disability Agency (USAPDA) Policy/Guidance Memorandum #12 gives a 20 percent rating when moderate]; and a 0 percent rating when slight.

11.  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 rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rating at less than 30 percent.  

12.  Department of Defense Instructions (DODI) 1332.38 implements policy and prescribes procedures for retiring or separating service members because of physical disability.  This instruction provides, in pertinent part, that a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his office, grade, rank, or duties, to include duties during a remaining period of Reserve obligation.  All relevant evidence will be considered in assessing service member fitness.  To reach a finding of unfit, the PEB must be satisfied that the information it has before it supports a finding of unfitness.  

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 MEBDS, 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 chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  DODI 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.  

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant has provided no evidence to show he did not give his informed concurrence with the informal PEB’s findings.  While it is true his PEB was held in Washington DC while he was located in Darmstadt, Germany, he was given a physical examination in Germany and he underwent his MEBD in Germany.  Furthermore, a PEBLO was located in Germany; he received advice from this individual and, when he signed his DA Form 199, the PEBLO was right there to witness his election.  The DA Form 199 was very clear – he did not have to concur with the findings and recommendation.  If he did not want to appear before a formal PEB, which was listed as one of his options, he still could have appealed the findings.  He elected not to do so.

3.  The applicant's MEBD listed two diagnoses, dextroscoliosis and bilateral plantar fasciitis.  At his PEB, the dextroscoliosis was determined to be EPTS and was not ratable; the plantar fasciitis was evaluated based on the results of the applicant's physical examination and was determined to be not unfitting.  The applicant has not shown that these determinations were incorrect.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not establish an error in the Army's rating process.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  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.

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)                                         AR20090016301



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ABCMR Record of Proceedings (cont)                                         AR20090016301



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