IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110007921 


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, item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 April 1993 be corrected to show he was medically retired. 

2.  The applicant states he should have been medically retired from active duty service due to his service-connected Bilateral Tarsal Coalition of the Subtalar Joints.

3.  The applicant provides:

* self-authored statements
* DD Form 214
* Department of Veterans Affairs (DVA) medical treatment records
* DVA rating decisions

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 enlisted in the Regular Army on 10 July 1991.  He completed training and was awarded military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained while on active duty was specialist/E-4.

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 August 1991, shows the applicant sustained an injury to his left ankle after stepping into a pothole during physical training.

4.  On 21 February 1992, a Medical Evaluation Board (MEB) convened and determined the applicant had tarsal coalition with rigid pes planus left foot (congenital).  The board found the condition did not occur while entitled to base pay and that it existed prior to service (EPTS).  The applicant was referred to an informal Physical Evaluation Board (PEB).

5.  On 19 March 1992, the applicant concurred with the findings of the MEB and was given a permanent physical profile.  Also on 19 March 1992, he submitted a request for continuance on active duty.

6.  On 3 April 1992, the PEB convened and found:

* the applicant's congenital pes planus of left foot with tarsal coalition existed prior to service and was not permanently aggravated by service over and above natural progression of the disease
* the applicant was unfit for further service and, therefore, denied for continuance on active duty
* the applicant's disability was not the result of a combat-related injury
* the applicant's separation was not based on a disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law

7.  The PEB recommended that the applicant be separated without disability benefits.

8.  On 25 April 1992, the applicant non-concurred with the findings of the PEB and requested counsel and a formal hearing.

9.  On 20 August 1992, additional tests were performed on the applicant which revealed he had a possible osseous bar with degenerative joint disease which had been aggravated through military service.

10.  On 18 January 1993, the PEB reconvened and, after careful consideration of the additional tests, adhered to the original findings and the recommendation to separate the applicant from the service without disability benefits.  Per the applicant's 25 April 1992 request, a formal PEB was directed.

11.  On 23 February 1993, the formal PEB convened.  After examining all of the evidence, the formal PEB reached the same conclusions as the informal PEB determining the applicant was unfit and recommending separation without benefits.  The applicant concurred and withdrew his request for continuation on active duty.

12.  On 26 April 1993, the applicant was honorably discharged.  He completed 1 year, 9 months, and 17 days of active military service.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Physical Disability Without Severance Pay."

13.  In support of his claim, the applicant provided self-authored statements, his DD Form 214, medical treatment records, and copies of his DVA rating decisions which show that on 29 July 2009, he received:

* a 20 percent service-connected disability rating for left tarsal coalition of the subtalar joint (also claimed as pes planus and left ankle condition) 
* a 10 percent service-connected disability rating for right tarsal coalition of the subtalar joint (also claimed as pes planus) 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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 heredity 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 existed prior to military service.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.
16.  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.

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he was medically retired was carefully considered.

2.  The applicant entered military service with an unfitting condition in his left foot which was determined to be EPTS as it was congenital (i.e., present at birth).  His condition was determined to have been temporarily aggravated by his military service.

3.  Records show the applicant, on 23 February 1993, concurred with the finding and recommendation of his formal PEB that he was unfit for military service and that he should be separated without benefits.

4.  The rating action by the DVA does not demonstrate an error or injustice on the part of the Army.  The DVA is not required by law to determine medical unfitness for further military service.  The DVA, 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.

5.  There is insufficient evidence to show the applicant's disability was improperly rated by the informal PEB, formal PEB, or that his separation was not in compliance with law and regulation.  Therefore, there is insufficient evidence as a basis for granting the applicant's 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)                                         AR20110007921



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ABCMR Record of Proceedings (cont)                                         AR20110007921



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