IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100016003 


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 narrative reason for separation be changed from "disability, existed prior to service" (EPTS) to "physical disability."

2.  She contends she did not have any problems with her foot prior to enlisting in the Army and that her foot was injured as a result of her military training.  She believes it was unfair for the Army to classify her injury as non-service connected as she will suffer for the rest of her life.

3.  She did not provide any additional documentation.

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 4 (Enlistment/Reenlistment Document) shows she enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) on 27 December 1999 for a period of 8 years.

3.  A Standard Form 88 (Report of Medical Examination), dated 27 December 1999, shows she was found to have mild asymptomatic pes planus in both of her feet; however, the medical provider found her qualified for enlistment.

4.  She was discharged from the DEP and enlisted in the Regular Army on 2 February 2000 for a period of 4 years.  Upon completion of basic combat and advanced individual training, she was awarded military occupational specialty (MOS) 71L (Administrative Specialist).   

5.  Her record contains a copy of a DA Form 2-1 (Personnel Qualification Record – Part II) that shows in item 35 (Record of Assignments) that she was assigned to the 212th Mobile Army Surgical Hospital, Miesau, Germany, on 7 June 2000.

6.  Her record also contains a radiology report, dated 18 December 2001.  This report found a relatively intense ovoid focus of increased activity at the medial aspect of the left navicular bone.  A mild focal increased uptake was noted in the lateral compartment of the left ankle joint as well.  The impression showed a recent healing fracture versus a fibrous disruption of an onset tibiale externum accessory bone.

7.  A medical evaluation board (MEB) consultation, dated 16 January 2002, shows her onset foot pain occurred in March 2001 with no indication of trauma.  She was treated with non-steroidal anti-inflammatory drugs/pain relievers and given foot inserts, which appeared to provide no relief.  The medical provider discussed the option of surgery along with the risks, benefits, and post-operative course with her.  The final diagnoses showed she had symptomatic accessory navicular of the left foot.

8.  A DA Form 3349 (Physical Profile), dated 5 February 2002, shows she was issued a permanent physical profile for symptomatic accessory navicular foot that restricted all running, jumping, and marching.  She was also precluded from wearing any load-bearing equipment (LBE), a Kevlar helmet, flak vest, or rucksack.

9.  A DD Form 2807-1 (Report of Medical History), dated 13 February 2002, shows she stated she was diagnosed with onset tibiale externum which was causing her pain and her only recourse was surgery.

10.  Her records contain a DD Form 2808 (Report of Medical Examination), dated 20 February 2002.  This form shows she was recommended to undergo an MEB.

11.  On 1 March 2002, her immediate commander stated she had been diagnosed with symptomatic accessory navicular in her left foot which greatly affected her ability to perform both garrison and tactical duties required of her primary MOS.  The commander also noted it was her (commander's) best judgment that the applicant would have difficulties performing some of the most basic Soldier skills.

12.  Accordingly, on 9 April 2002, an MEB convened at Landstuhl Regional Medical Center in Germany.  The DA Form 3947 (Medical Evaluation Board Proceedings) shows the MEB determined she had symptomatic accessory navicular of the foot that did not exist prior to service and was permanently aggravated by her military service.  The MEB referred her case to a physical evaluation board (PEB).  She concurred with the MEB's findings and indicated she did not desire to continue on active duty.

13.  On 29 April 2002, the PEB returned her MEB proceedings to the Commander, Landstuhl Regional Medical Center for clarification of two questions.  The questions along with the responses show:

Question 1.  Is the accessory navicular a congenital condition, or the result of recent fracture/fibrous disruption as suggested by the radiological report approved on 27 August 2001 [should read 18 December 2001]?

Answer 1.  Accessory navicular is a congenital condition, which can either be asymptomatic or become symptomatic at any point in a patient's life.  In this particular case, it appears that there was a fibrous disruption between the accessory navicular bone and the main body of the navicular.  No fracture was noted.

Question 2.  If there is a fracture, can it be attributed to a specific event for which a line-of-duty investigation can be provided?

Answer 2.  There does not appear to be a fracture, but appears to be a fibrous disruption between the accessory navicular and the main body of the navicular bone.  There is no specific event for which this injury can be attributed.  As stated by the patient on presenting to the Podiatry Clinic, she had an approximate onset of pain in March 2001 with no recalled trauma.  This can be due to numerous possibilities to include an excessive load (rucksack, flak vest, or LBE), stepping on an uneven surface in either running or normal walking activities, or wearing non-supportive shoes or boots.  Since the Soldier did not recognize a specific incident or trauma, it is difficult to ascertain the mechanism of injury.

14.  On 26 June 2002, the PEB found her physically unfit with a combined rating of 0 percent and further recommended that she be separated from the Army without disability benefits.  The description of her disability shows:

	a.  symptomatic (pain) accessory navicular, a congenital condition, of the left foot without any documented history of trauma or injury;

	b.  bilateral, moderately symptomatic, pes planus (left greater than right), which was the underlying condition that precipitated the medical board.  It was EPTS, was not permanent service aggravated, and not rated;

	c.  additionally, the PEB noted there was sufficient evidence to support that her condition had not been aggravated by her military service, but rather was a result of natural progression; and

	d.  EPTS conditions are not compensable under the Physical Disability Evaluation System (PDES).

15.  On 2 August 2002, she was honorably discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of paragraph 4-24b(4) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability – EPTS.  This form further shows she completed a total of 2 years, 6 months, and 1 day of creditable active military service.  Item 26 (Separation Code) shows the entry "JFM" and item 28 (Narrative Reason for Separation) shows the entry "disability, EPTS, PEB."

16.  Army Regulation 635-40 establishes the Army 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.  It provides for MEB's 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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

17.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which was EPTS or occurred in the line of duty, not due to the Soldier's misconduct.  Paragraph        4-24b(4) provides for separation for physical disability without severance pay.

18.  Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they EPTS.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JFM" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay).

DISCUSSION AND CONCLUSIONS:

1.  She claims she did not have any medical problems with her left foot at the time she entered the Army and her medical condition pertaining to her left foot was the result of her training.  A copy of her Standard Form 88 clearly shows that mild asymptomatic pes planus in her feet was discovered during her entrance physical examination and this condition was made a matter of record.

2.  Consequently, her records were evaluated by an MEB and further referred to a PEB.  The PEB found her medically unfit and noted compelling evidence to support a finding of EPTS, which was not aggravated by military service.

3.  The PEB also indicated her first symptoms were observed during her military entrance medical examination.  According to accepted medical principles, the manifestation of a chronic disease from date of entry on active military service is accepted as proof that the disease existed prior to entrance into active military service.

4.  The evidence of record also shows she suffered from a medical condition – symptomatic accessory navicular of the left foot that rendered her unable to satisfactorily perform the duties of her grade and MOS.  Accordingly, the PEB recommended her separation by reason of physical disability without entitlement to severance pay.

5.  Her narrative reason for separation was assigned based on her separation under the provisions of paragraph 4-24b(4) due to her condition of symptomatic accessory navicular of the left foot which EPTS.  Therefore, the only valid narrative reason for separation permitted under paragraph 4-24b(4) is "disability, EPTS."  She has not provided sufficient evidence or a compelling argument to show otherwise.  Her rights were fully protected and all requirements of the law were met.  Therefore, she is not entitled to the 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 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)                                         AR20100016003



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ABCMR Record of Proceedings (cont)                                         AR20100016003



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