BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100025845 


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, change of his honorable discharge to a medical discharge with benefits.

2.  The applicant states:

* In April 2004 he was deemed unfit for duty by the Physical Evaluation Board (PEB)
* It was determined his injury was the direct result of an injury he sustained at the U.S. Military Academy (USMA), West Point
* The PEB ruled that since his original injury occurred at West Point his disability was the result of an injury that existed prior to service (EPTS)
* He was discharged from the Army in August 2004
* It has come to his attention that since his discharge regulations regarding injuries sustained at service academies now qualify as service-connected and are no longer characterized as EPTS
* He would like his DD Form 214 changed to reflect this change in policy 

3.  The applicant provides:

* His Medical Evaluation Board (MEB) and PEB proceedings
* His 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.  Having prior enlisted service in the Regular Army, he was released from active duty on 27 June 1999 to enter a service academy.  He injured his left foot in 2002 while a cadet at the USMA, West Point.  Upon his graduation from West Point, on 31 May 2003, he was commissioned a second lieutenant in the U.S. Army Reserve (USAR).

3.  On 1 June 2004, an MEB diagnosed the applicant with malunion old fracture sesamoid, left; degenerative joint disease, first setatarsophalangeal joint left; neuritis (mononeurpathy); hallux rigidus; chronic sesmoiditis; pes cavas - EPTS.  The MEB found the conditions, insomnia and hypertension with hypercholesterolemia, met retention standards.  Apparently, the MEB recommended referral to a PEB.

4.  On 6 July 2004, a PEB found the applicant physically unfit due to chronic left foot pain secondary to a fractured sesamoid bone in 2002, while a cadet at West Point.  His foot pain progressively worsened following commissioning and status post excision (February 2004) with limited range of motion, due to pain.  He developed arthritis in the joint area due to original trauma, hallux rigidus and a neuritis which could not be rated because of pyramiding and being related to the surgery.  These conditions were not ratable in that they existed prior to service without permanent service aggravation.  Conditions (pes cavas, insomnia, and hypertension with hypercholesterolemia) were considered by the PEB and found to be not unfitting and not ratable.  The PEB determined his unfitting conditions were found to be neither service-incurred nor permanently aggravated by military service.  His impairment originated while not entitled to basic pay and had increased only to the extent of its accepted normal and natural progress; therefore, there was no permanent service aggravation.  Because his conditions 


were not service-incurred or permanently aggravated, he was ineligible for disability compensation.  The PEB recommended a combined 0 percent (%) disability rating percentage and separation from the service without disability benefits.  

5.  On 19 August 2004, he was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), for disability, EPTS, PEB.

6.  In the processing of this case, on 8 March 2011, an advisory opinion was obtained from the U.S. Army Physical Disability Agency, Washington, D.C.  The advisory official recommended the applicant's request be denied.  The advisory official states:

* The applicant injured his foot in 2002 while a cadet at West Point
* This injury resulted in his being found unfit for duty and separated without disability compensation in August 2004
* At the time of his separation, Title 10, U.S. Code, sections 1217 and 1201 specifically stated that only disabilities incurred while entitled to basic pay were compensable disabilities; cadets at West Point were specifically excluded from consideration
* On 28 October 2004, the law was changed to reflect that, from that date forward, disabilities incurred while a cadet would be compensable; the law was not to be applied retroactively
* The applicant's separation was accomplished in accordance with the laws applicable at that time and there was no error or injustice regarding the processing of the applicant's case
* It is unfortunate that the change in law did not occur sooner to benefit the applicant; however, Congress chose not to have the change in law applied retroactively

7.  On 8 March 2011, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a reburral.  He did not respond.

8.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 1-4 states that Title 10, U.S. Code, section 1217 excludes cadets of service academies from eligibility for disability benefits under Title 10, chapter 61.
9.  Title 10, U.S. Code, chapter 61 (Retirement or Separation for Disability), section 1217 (cadets, midshipmen, and aviation cadets:  chapter does not apply to) in effect at the time stated “This chapter does not apply to cadets at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy or to midshipmen of the Navy.”

10.  Title 10, U.S. Code, section 1217 currently applies to cadets at the USMA, U.S. Air Force Academy, and U.S. Coast Guard Academy and midshipmen of the U.S. Naval Academy but only with respect to physical disabilities incurred after 
28 October 2004.  Monthly cadet pay and monthly midshipmen pay under
Title 37, section 203(c) shall be considered to be basic pay for purposes of this chapter and the computation of retired pay and severance and separation pay to which entitlement is established under this chapter.

11.  Title 10, U.S. Code, section 1201 states upon a determination by the Secretary concerned that a member is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent, the Secretary may retire the member with retired pay if the Secretary also makes the determinations with respect to the member and that disability.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant injured his left foot in 2002 while a cadet at the USMA, West Point.  As a result of this injury, he was found unfit for duty and he was separated in August 2004 without disability compensation.

2.  At the time of his discharge, the law specifically stated only disabilities incurred while entitled to basic pay were compensable disabilities.  Cadets at West Point were specifically excluded from consideration.  Therefore, his separation was accomplished in accordance with applicable laws at the time of his discharge on 19 August 2004.  

3.  On 28 October 2004, the law was changed to reflect, from that date forward, disabilities incurred while a cadet would be compensable; the law was not to be applied retroactively.

4.  His injury while at the USMA was unfortunate; however, by law he, as a USMA cadet, was ineligible for disability benefits.  Regrettably, 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)                                         AR20100025845



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ABCMR Record of Proceedings (cont)                                         AR20100025845



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