IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100024453 


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, correction of his record to show his medical condition was aggravated by active duty service. 

2.  He states he was found medically fit for service with abnormal feet on 8 July 1976 and again on 21 September 1976.  After his entry into service, he started having trouble with his feet, was found to be medically unfit for service on 26 October 1976, and was discharged.

3.  He provides copies of:

* his DD Form 214 (Report of Separation from Active Duty)
* a memorandum stating the reason for his separation from active duty
* four pages from his service medical 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.  On 8 July 1976, the applicant enlisted in the U.S. Army Reserve to participate in the Delayed Entry Program.  On 21 September 1976, he enlisted in the Regular Army for a period of 3 years. 

3.  A Standard Form 88 (Report of Medical Examination) shows, on 2 July and 21 September 1976, he underwent medical examinations for enlistment.  The form shows he had pes cavus, and was found fit for military service. 

4.  A Standard Form 502 (Narrative Summary) shows, on 22 October 1976, he received a medical examination because of continual pain in the left ankle and some pain in the right ankle.  The form shows he gave a history of having some ankle pain during previous employment as a laborer.  The examining physician diagnosed bilateral pes cavus with lack of dorsiflexion beyond 0 degrees on the left and recommended him for a medical board.  

5.  On 22 October 1976, he requested discharge for physical disability.  In his request, he acknowledged he had been informed he was considered unqualified for retention in military service by reason of a physical disability found to have existed prior to his enlistment and which was neither incident to nor aggravated by his military service.  He acknowledged he had the right to consideration of his case by the adjudicative system established by the Secretary or the Army for processing disability separations.  He indicated he elected not to exercise that right.  He further acknowledged he would be separated by reason of physical disability that existed prior to service (EPTS) and would receive a discharge of the type commensurate with the character of his service. 

6.  A DA Form 3947 (Medical Board Proceeding) shows a medical board found him medically unfit for further military service.  

	a.  The board found he had bilateral pes cavus with lack of dorsiflexion beyond 0 degrees on the left and found this was an unfitting condition as defined in Army Regulation 40-501, paragraph 3-13d(3)(a).  

	b.  The board determined his condition had existed prior to service and was not aggravated by active duty.

	c.  Item 21 (Brief Summary of Medical Conditions and Physical Defects in Nontechnical Language) shows the entry "Bilateral high arches with limited motion."

	d.  The board recommended he be returned to duty for expeditious discharge under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5.

	e.  The board's findings and recommendations were approved on 15 November 1976.

7.  On 26 November 1976, the separation authority approved his discharge under the provisions of Army Regulation 635-40, chapter 5, for physical disability that was neither aggravated by nor incurred during any period of active duty, and directed he receive an Honorable Discharge Certificate.  On 30 November 1976, he was discharged according to the separation authority's directions.  

8.  A memorandum, subject: Reason for Separation, dated 30 November 1976, shows the reason for his discharge from active duty was physical disability - EPTS.

9.  Army Regulation 40-501 (Standards of Medical Fitness) defines medical fitness standards for retention and separation.  Paragraph 3-13d(3)(a) of the version in effect at the time stated motion of the ankle which does not equal or exceed dorsiflexion to 10 degrees was unfitting.

10.  Army Regulation 635-40, chapter 5, in effect at the time, provided for the expeditious discharge of an enlisted member who did not meet retention medical fitness standards and was unable to perform the duties of his office, grade, rank, or rating because of physical disability neither incurred nor aggravated during a period in which he was entitled to basic pay.  A Soldier would be offered a chance for expeditious discharge provided that he agreed with the findings of the MEB and was otherwise eligible for discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support correcting the applicant's record to show his medical condition was aggravated by active duty service

2.  Prior to entering active duty, he was diagnosed with pes cavus, but found fit for service.  When he entered active service, his condition was found to interfere with his performance of duty.  Therefore, he was referred to a medical board, which found him medically unfit for further military service.  The board did not find that his condition was aggravated by his active duty service.  He agreed with the medical board's findings and recommendations and requested expeditious discharge, which was approved.  

3.  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 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)                                         AR20100024453





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ABCMR Record of Proceedings (cont)                                         AR20100024453



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