IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100018145 


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 reconsideration of the Board's denial of his request to correct his records to show he was medically discharged.

2.  The applicant states through his Member of Congress that:

…he remained in the hospital for 7 days after his surgery; he wore a cast on his leg for 2 months; used crutches for 3 months, and relied on a cane for the remainder of his time…he [was] medically qualified for duty with permanent assignment limitations…if he was dependent on the use of a cane to walk…and his condition was recognized as being permanent, then how would it have been possible for him to fulfill his rating as an Infantryman and carry out those actions without difficulty even for a short period of time?

3.  The Member of Congress states the Board's initial decision to deny the applicant relief was based on insufficient evidence.  The denial notice stated that:

…the applicant's medical condition was reviewed on 9 February 1981, after his separation from active duty, and on 27 July 1981 he was found qualified for retention.  There [was] no evidence in the applicant's records that his medical condition disqualified him from further service and/or warranted his entry into the Physical Disability Evaluation System….
Absent any evidence he suffered from a medically disqualifying condition at the time of his REFRAD, there is an insufficient evidentiary basis to grant the requested relief.

4.  The Member of Congress noted that the Board only took into account information formally recorded in the applicant's military service records and did not consider any findings made by third-party doctors after the applicant's service was completed.  He continues by stating, "I feel that [the applicant's] military records did not accurately record his surgery and the severity of the injury he had."

5.  The Member of Congress identified a discrepancy in the applicant's medical history as shown in the initial Record of Proceedings.  The document was prepared on 29 May 1979 and stated the applicant was "discharged from the hospital on 14 March 1979…on 15 March 1979 [the applicant] underwent excision of the medical sesamoid without difficulty."  He questions, "How can a person be discharged from the hospital and undergo surgery the next day?"  He further states, "It is my judgment that the dates recorded in this document were done in error…I ask [the Board] to take another look at this document and reevaluate [the Board's] decision made on [the applicant's] file."

6.  The Member of Congress states, "[the applicant] has provided my office with documentation from his physicians that state that he has suffered from secondary injuries resulting from his accident and the surgery he had in 1979."

7.  The Member of Congress states that the applicant's physicians state "[the applicant] suffered secondary injuries resulting from his accident and surgery in 1979."  The applicant's doctors provided evidence to show he suffers from 

   "right foot metatarsalgia [pain and inflammation in the ball of the foot] and severe lower back pains, along with chronic arthritis.  Given that these symptoms resulted from [the applicant's] injury, his injury should have been recognized by the Army Regulation 40-501 (Standards of Medical Fitness), [paragraphs] 3-13b, 3-14a, and 3-14b, which deal with various injuries to his feet and the development of arthritis as a result of the injury."  
   
8.  Based on the information received, the Member of Congress states the Board should "take into consideration the secondary injuries that have resulted from [the applicant's] injury and recognize his injury as qualifying for a medical discharge."

9.  In conclusion, the Member of Congress states, "Since [the applicant's] service in Vietnam, [the applicant[ has struggled to obtain the veterans' compensation he deserves.  His records have either been insufficient to warrant a decision, or incorrectly recorded."  He is seeking relief for his constituent in the form of a medical separation.

10.  Through his Member of Congress, the applicant provides copies of his internal military hospital medical records and photographs showing he used a cane to assist with his mobility.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090018466 on 20 May 2010.

2.  The applicant's internal hospitalization military medical records, the three photographs and arguments submitted by his Member of Congress are new evidence that warrant consideration by the Board.

3.  The applicant's complete military personnel and medical records are not available for the Board's review.  However, there are sufficient documents in the available records, documents provided by the applicant and his Member of Congress, and documents of record in his previous case to conduct a fair and impartial reconsideration of this case.

4.  The applicant enlisted in the Regular Army on 3 May 1977.  He completed initial entry training and he was awarded military occupational specialty 11B (Infantryman).

5.  Contained within the supporting documents considered in ABCMR Docket Number AR20090018466 is a medical summary statement showing the applicant had fractured his medial sesamoid and had pain under the ball of his right foot.  By radiological examination, it was confirmed he had a "fibrous nonunion of [an] old fracture of [his] medial sesamoid under the ball of the right great toe."  The fracture had occurred 5 months earlier.  He elected voluntary excision of the right medial sesamoid.  

6.  Within his limited medical records, there is a Standard Form (SF) 509 (Doctor's Progress Notes that shows on 14 March 1979 at 1300 hours, the applicant had a health screening for an operation.  DA Form 3647-1 (Clinical Record Cover Sheet) shows he had surgery on 15 March 1979.  He was fitted with a short leg-walking cast on 20 March 1979 and then started convalescent leave on 21 March through 10 April 1979.  Item 37 (Total Duration This Facility) shows he had 27 total sick days with 7 days of hospitalization and 20 days of convalescent leave.  The same form shows he received a temporary profile of "3" for his lower extremities. 

7.  Contained within the supporting documents considered in ABCMR Docket Number AR20090018466 is a DA Form 3349 (Medical Condition – Physical Profile Record), dated 11 January 1980, that shows he received a permanent "3" profile in the lower extremities portion of the physical profile record.  This physical profile document shows he was medically qualified for duty with permanent assignment limitations and he was returned to his unit.  His defect was listed as "chronic foot pain, right, secondary to halluz valgus [bunion deformity] (angulation of great toe away from midline of body)."  Three Medical Corps officers recommended he receive a permanent physical profile (L-3) and the appropriate approval authority approved their recommendation.

8.  On 2 May 1980, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 2, by reason of completion of required service.  He completed 3 years of active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation.

9.  There is no evidence in the applicant's available service record to show he served a combat foreign service tour in the Republic of Vietnam.

10.  The case files for ABCMR Docket Number AR20090018466 contain a Standard Form 507 (Clinical Record), dated 27 July 1981, that shows a USAR Physical Review Board reviewed the applicant's permanent profile (L-3) and found him qualified for retention/active duty.

11.  On 26 August 1982, the applicant was honorably discharged from the USAR Ready Reserve.

12.  In support of his application, the applicant's Member of Congress provided copies of three black and white photographs.  Two photographs show a man in civilian clothes using a cane to balance while he stands on a sidewalk next to a car.  The third picture shows the same man sitting in a chair with a cast on his leg.

13.  References:

	a.  Army Regulation 40-501, paragraph 3-13b, provides guidance for the lower extremities of the body to include the causes for a referral to a medical evaluation board (MEB).  Specifically, paragraph 3-13b pertains to the feet as follows:

* hallux valgus (bunion) when moderately severe, with exostosis or rigidity and pronounced symptoms; or severe with arthritic changes
* pes planus (flat fee or fallen arches), when symptomatic, more than moderate, with pronation on weight bearing which prevents the wearing of a military shoe
* pes cavus (high instep or high arch), when moderately severe, with moderate discomfort on prolonged standing and walking, metatarsalgia, and which prevents the wearing of a military shoe

	b.  Army Regulation 40-501, paragraph 3-14a, provides guidance for miscellaneous conditions of the lower extremities that would cause referral to an MEB.  These conditions are as follows:

* arthritis due to infection, associated with persistent pain and marked loss of function with objective x-ray evidence and documented history of recurrent incapacity for prolonged periods
* arthritis due to trauma, when surgical treatment fails or is contraindicated and there is functional impairment of the involved joints so as to preclude the satisfactory performance of duty
* osteoarthritis, with severe symptoms associated with impairment of function, supported by x-ray evidence and documented history of recurrent incapacity for prolonged periods
* rheumatoid arthritis or rheumatoid myositis substantiated history of frequent incapacitating episodes and supported by objective and subjective findings

	c.  Army Regulation 40-501, paragraph 3-14b, provides guidance for miscellaneous conditions of the lower extremities that would cause referral to an MEB.  These conditions include chondromalacia or osteochondritis dissecans, severe, manifested by frequent joint effusion, more than moderate interference with function, or with severe residuals from surgery.

	d.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the Soldier to an MEB.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  Those Soldiers determined physically unfit are continued on active duty, discharged with severance pay, or placed on the Retired List due to physical unfitness.
	e.  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 office, rank, grade, or rating because of disability incurred while entitled to basic pay.

	f.  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 rated at less than 30 percent.

	g.  Title 38, U.S. Code, permits the Department of Veterans Affairs (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.

	h.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begin its consideration of each case with the presumption of administrative regularity.  Further, the ABCMR is not an investigative body and will decide cases based on the evidence of record found within an applicant's available military records and evidence presented by an applicant to the Board.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army in 1977 after the end of hostilities in the Republic of Vietnam and the evidence of record shows he had no previous enlistment or foreign service tour in the Republic of Vietnam.  While the applicant has been trying to get assistance to correct his record to show a medical separation, the evidence of record does not support the statement made in his application that he is a Veteran of the conflict in the Republic of Vietnam. 

2.  The Member of Congress pointed out a discrepancy in the date sequencing of the applicant's period of hospitalization.  In-patient hospital records provided by the applicant and his Member of Congress show the following sequence of events:  

* on 14 March 1979, entered the hospital and had pre-operation physical
* on 15 March 1979, surgery removed his right medial sesamoid bone
* on 21 March 1979, hospitalization status changed to convalescent leave with a short-leg cast 
* on 10 April 1979, discharged from hospital and returned to duty with a temporary L3 profile for his lower extremities
3.  While it is noted that a date sequencing error occurred in the preparation of the ABCMR Docket Number AR20090018466 due to a lack of internal hopitalization medical records, this error had no impact on the applicant's separation from active duty.

4.  In January 1980, he received a permanent L3 profile for right foot pain secondary to a bunion, not sesamoiditis.  He was cured of sesamoiditis (inflammation due to failure of the bone to grow back together) when the sesamoid was removed.  The applicant met Army retention standards.  He was released from active duty and transferred to the Ready Reserve.  In 1981, a Medical Review Board found him qualified for retention.  Upon completion of his required service, he was discharged from the Ready Reserve.  

5.  The applicant's surgery for removal of his right medial sesamoid bone might be linked to a possible bunion formation, thus the permanent physical profile of L3 for right foot pain secondary to a bunion.  However, bunions are extremely common and usually mulifactorial in cause, often related to tight shoes, arthritis, and heredity (alone or in combination).  There is no evidence the applicant's bunion met the criteria (when moderately severe, with exostosis or rigidity and pronounced symptoms; or severe with arthritic changes) for referral to an MEB/PEB.

6.  The applicant's hospitalization and surgery were for a different condition    than the condition for which he was permanently profiled.  Within a period of     18 months, two separate medical authorities from the active component and Ready Reserve determined the applicant met medical retention standards for fitness for duty.  

7.  The applicant's Member of Congress expressed his concern that the initial Board's Record of Proceedings did not take into consideration any findings by third-party doctors after the applicant was discharged from the service.  Neither the applicant nor his Member of Congress provided this Board with statements by third-party doctors nor were statements from third-party doctors contained within the proceedings of ABCMR Docket Number AR20090018466.

8.  The applicant was determined to be medically qualified for retention by a USAR Physical Review Board after his REFRAD.

9.  The Army's Disability Evaluation System is designed to determine a Soldier's medical qualification and ability to perform duties within physical profile limitations at the time the examination or hearing is conducted.  Therefore, if a veteran's service-connected medical conditions worsen after the Soldier's REFRAD, that fact does not imply the findings by the Army were in error.  The VA has the authority to provide monetary compensation and medical treatment for conditions that worsen after separation from military service.

10.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected.

11.  In view of the foregoing, there is no basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20090018466, dated 20 May 2010.




      __________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)                                         AR20100018145



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ABCMR Record of Proceedings (cont)                                         AR20100018145



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