IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100026179 


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 correction of his records to show he was discharged by reason of physical disability.

2.  The applicant states:

* his induction health records indicate he was fit for induction
* two weeks later he was diagnosed with severe flat feet
* he should never have been inducted into the Army
* he was sent to Vietnam to clear mine fields on his knees and drive dump trucks with lots of daily clutching and shifting

3.  The applicant provides through his Congressional Representative:

* A letter written to the Chief, Client Information and Quality Assurance Department, Army Review Boards Agency, dated 12 October 2010
* A Privacy Authorization Form, dated 5 October 2010
* A letter from South Side Medical Walk-In Clinic Inc., dated 26 July 2000
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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.  The applicant's DD Form 47 (Record of Induction) shows he underwent 
pre-induction medical and mental examinations on 5 October 1966.  He was found acceptable for induction into the Armed Forces.  On 2 February 1967, at the time of his induction into the Army of the United States, he underwent a physical examination, and he was found acceptable for induction.  He completed training as an atomic demolition munitions specialist.  He arrived in Vietnam on
5 April 1968.  

3.  The applicant departed Vietnam en-route to the U.S. on 23 January 1969.   He was honorably released from active duty on 25 January 1969, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 5, as an overseas returnee.  He was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

4.  The applicant's military records contain a Department of Veterans Affairs (VA) Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service), showing that on 25 January 1969, he filed a claim due to a calcium deposit on his left knee.  There are no other medical documents contained in his official military record.

5.  In the letter the applicant submits from South Side Medical Walk-In Clinic, the doctor states he reviewed applicant's VA records and determined that the applicant's induction medical examination, dated 5 October 1966, describes his feet as being normal.  He states the induction examination was cited as evidence by the 19 October 1998 Board of Veterans Appeals Report.  The doctor states the entry in the applicant's Chronological Record of Medical Care is described as being conducted at "Disp #7 F.B.T." diagnoses pes planus and states he was sent to building 7111 for arch supports.  The doctor states the applicant indicates and there is no record he ever received arch supports.  This doctor indicates the applicant's separation medical examination, dated 25 January 1969, revealed his feet were normal; therefore, there is an apparent error in the diagnoses rendered in his induction and separation examinations that have been acknowledged by the VA in the report of the Veteran Service Center Manager, dated 3 February 2000.
6.  In the letter the applicant submits, his doctor stated:

* It is unlikely the applicant developed pes planus in the period between October 1966 and February 1967 without having significant foot trauma
* It is his opinion the applicant had pes planus prior to induction
* The applicant's pes planus is quite profound and should have excluded him from being inducted into the Army
* Failure to diagnose the applicant's pes planus during his induction physical predisposed him to further injury through his service to the country
* Failure to properly treat the applicant's pes planus during his period of service most assuredly contributed to his condition getting worse
* Failure to diagnose the applicant's pes planus contributed to the chondromalacia patella, ankle sprains chronically represented in the literature and at best aggravated the preexisting Osgood Schlatter's
* Failure to diagnose the applicant's pes planus during his separation physical denied him adequate care in the years that followed and predisposed him to further deterioration

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

8.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered 

medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting documents have been considered.  

2.  However, the available records do not show he was suffering from any medically unfitting condition that would have required him to be processed for discharge through medical channels.

3.  The available records do not show that he was unable to perform his duties while he was in the Army.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100026179



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ABCMR Record of Proceedings (cont)                                         AR20100026179



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