BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090018976 


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, reinstatement onto active duty in the Regular Army.

2.  The applicant states he had inadequate counsel at the time of separation for physical disability.  He would have liked to have requested continuation on active duty.  He has "been reevaluated by an orthopedic surgeon and found to have no condition to warrant separation from the military."  He would not have agreed to accept the disability rating had he not been assured that he could easily return to active duty.

3.  The applicant provides, in support of his application, a 2 June 2009 medical evaluation from Fort Eustis, Virginia; an Army Physical Fitness Test (APFT) Scorecard, dated 30 May 2009; and records from his October 2008 Medical Evaluation Board (MEB).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, in pay grade E-3, on 22 August 2007.  He completed basic training and advanced individual training (AIT) as a helicopter repairer in military occupational specialty (MOS) 15S.  He was awarded the Basic Aviation Badge on 7 February 2008.  

2.  The applicant deployed to Iraq from 1 May 2008 to 7 June 2008.



3.  Medical records show he developed bilateral lower leg pain in basic training but did not complain for fear of falling behind and being recycled.  He reported to sick call only once during training, on 21 April 2008.  He deployed to Iraq shortly after completing AIT and soon developed severe knee and lower leg pains.  There was no magnetic resonance imaging (MRI) capability there and the applicant was medically evacuated to Germany and then on to the United States.  Additionally:

* Extensive testing was done.  Although a large osteochondroma [a benign tumor containing both bone and cartilage and usually occurring near the end of a long bone] on the outer left upper tibia and a small fibroxanthoma [a fibrous soft tumor made up of gelatinous connective tissue] on the inner side of the left upper tibia were found, neither of these was troublesome or unfitting
* Basically, unexplained knee, leg and ankle pain continued to plague the applicant.  On a 1-to-10 scale, he rated a good day as 6/10 and a bad day as 8/10.  He had no pain free days
* As a helicopter crew chief he was unable to repair, supervise or perform maintenance on his aircraft.  He could not do the rigorous physical training required, could not carry more than 30 pounds or wear body armor
* He felt his condition unchanged for the past year

4.  On 7 October 2008, an MEB recommended the applicant' s case be considered by a physical evaluation board (PEB) with the following diagnoses:

* Left tibial osteochondroma and nonossifying fibromas of the proximal and distal left tibia; fails retention standards in accordance with Army Regulation 40-501, chapter 3-41e(2)
* Bilateral pain in the proximal leg muscles due to stress reaction; meets Army retention standards
* Adjustment disorder; meets Army retention standards 

5.  The applicant concurred with the MEB's findings and recommendation.

6.  The PEB described the medical findings in detail and noted:

Chronic bilateral leg pain confined to the proximal muscles near the knee…condition developed during basic training…progressively worse since prompting return from deployment in Iraq…This condition is unfitting secondary to chronic pain, inability to perform PMOS tasks and profile restrictions that prohibit wearing body armor…Clinically the 


unfitting pain is confined to the soft tissues…Symptoms are all worsened by strenuous activity…Inconsistent findings are variable range of motion…and inappropriate pain response to palpitation of the legs…Rated as analogous to myositis, soft tissues (muscle) of the bilateral knees…Rated 10% right and 10% left. (MEB Dx 2 & NARSUM)

CR: R,10 + L,10 = 19 + BF:1.9 = 20.9 =20%

7.  The PEB found the disabling condition was not the result of misconduct or willful neglect, was incurred or aggravated while entitled to basic pay and in the line of duty, and was the proximate result of performing duty and recommended a disability percentage of 20%.

8.  The applicant concurred and waived a formal hearing.  On 26 February 2009, he was separated due to physical disability with severance pay.

9.  In the 2 June 2009 medical evaluation that the applicant submits with his application an orthopedist indicated that the applicant demonstrated no pain upon palpitation.  She relates that the applicant reported he was running 6 miles on a regular basis without any symptoms.  A recruiter administered the attached APFT.  She concluded, "If his accounts of his current physical training are accurate, he appears to meet retention standards for reenlistment into the Army.  I think it would be inadvisable to reinstate him to his former status without some verification of his stamina such as basic training…We can only verify that his physical exam is normal…"

10.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at 


the time of the PEB hearing.  A disability rating of 30% or higher as determined by the Physical Disability Evaluation System (PDES) entitles a Soldier to retirement benefits.  Personnel who receive less than a 30% disability rating are afforded severance pay if eligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he had inadequate counsel at the time of separation for physical disability.  He would have liked to request continuation on active duty.  He has "been reevaluated by an orthopedic surgeon and found to have no condition to warrant separation from the military."  He would not have agreed to the disability rating had he not been assured that he could easily return to active duty

2.  The Army orthopedist who examined the applicant provided no conclusion about the applicant's condition at the time he was separated.  Her words are, "If his accounts of his current physical training are accurate, he appears to meet retention standards for reenlistment into the Army.  I think it would be inadvisable to reinstate him to his former status without some verification of his stamina such as basic training…We can only verify that his physical exam is normal…" This is  much more qualified and restrictive than his assertion that she found him "to have no condition to warrant separation from the military."

3.  Indeed, the ideas expressed in the governing law, "a member who is physically unfit to perform the duties …" and the pertinent regulation, "a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties…" fit this case perfectly.  

4.  The applicant had proven physically incapable of performing his duties and his profile limitations precluded his Soldiering. 

5.  Furthermore, there is no substantiation of his assertion that he was misled about being able to easily reenter the Service.  Also, there is no evidence to support his inference that his opposition to the findings and recommendations of the PEB would have made any difference to the outcome.

6.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.

7.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20090018976





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ABCMR Record of Proceedings (cont)                                         AR20090018976



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