IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110009736 


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, her honorable discharge be changed to a medical retirement.

2.  The applicant states:

	a.  the Army indicated her condition existed prior to service (EPTS) but that is not the truth.  Her condition did not exist prior to service and her discharge should be upgraded to disability retirement.

	b.  her initial "Report of Medical Examination" completed on 23 April 1997 shows she did not have any problems with her lower extremities and her feet were determined to have a normal arch.  She was sent to the Medical Evaluation Board (MEB) for shin splints and flat feet.  The MEB found she had bilateral leg pain (shin splints), the approximate date of origin was August 1998, the injury was incurred while entitled to base pay, and it did not exist prior to service.  But it was not determined if the injury was permanently aggravated by service.

	c.  her packet was then forwarded to the Physical Evaluation Board (PEB).   The PEB found she had bilateral pains without any specific history of trauma/injury and her examination noted pes planus, a congenital condition known to cause leg pains in the absence of specific injury or trauma; EPTS.  This was a gross error because the board had no evidence to substantiate their findings. 


	d.  her Report of Medical Examination, dated 16 May 2003, for her MEB showed her lower extremities (except feet) were abnormal and her feet were then categorized as pes planus, moderate, and symptomatic.  She had a calf muscle injury on her right leg in August/September 1998 and did not have problems with her legs again until 2001 at which point she developed shin splints and stress fractures that became progressive to the point she was given numerous profiles and she was eventually referred to an MEB.

	e.  she was treated for shin splints and feet problems on several occasions while deployed to Kuwait but these medical files are not contained in her copy of medical records.  Her arches collapsed in Kuwait and she was also diagnosed with medial tibial stress syndrome.         

3.  The applicant provides:

* Physical Disability Board of Review memorandum
* MEB proceedings
* Service medical records
* MEB summary
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 3349 (Physical Profile)
* Radiology report

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.  Item 36 (Feet) of a Standard Form (SF) 88 (Report of Medical Examination), dated 23 April 1997, shows the applicant's feet were rated normal.  She enlisted in the Regular Army on 7 August 1997 for a period of 4 years.  She completed her training and was awarded military occupational specialty 31R (Multi-transmission System Operator/Maintenance).  She was honorably discharged on 10 October 2001 for immediate reenlistment.  She reenlisted on 11 October 2001 for a period of 5 years.  She served in Kuwait from 14 November 2001 to 4 April 2002.  

3.  On 30 April 2003, she was issued a permanent "3" physical profile under lower extremities for chronic left and right leg pain (shin splints).

4.  Item 35 (Feet) of an SF 88, dated 16 May 2003, shows her feet were rated abnormal.

5.  In August 2003, an MEB diagnosed the applicant with bilateral leg pain (shin splints).  DA Form 3947 (MEB Proceedings) states:

* The approximate date of origin was August 1998
* the condition incurred while entitled to base pay
* the condition EPTS
* the condition was medically unacceptable

6.  This form also shows the applicant did not desire to continue on active duty under Army Regulation 635-40 ((Physical Evaluation for Retention, Retirement, or Separation).  Her MEB narrative summary states the bone scan results revealed no essential pathology.  The MEB recommended referral to a PEB.

7.  On 11 September 2003, a PEB found the applicant physically unfit due to bilateral leg pains without any specific history of trauma/injury.  The proceedings state the applicant's physical examination notes pes planus, a congenital condition, known to cause leg pains in the absence of specific trauma/injury.  The PEB determined this condition existed prior to enlistment without permanent service aggravation.  The PEB recommended a combined 0 percent (%) disability rating percentage and separation from the service without disability benefits.  On 21 October 2003, the applicant concurred with the findings and recommendations and waived a formal hearing.  

8.  On 23 October 2003, the U.S. Army Physical Disability Agency approved the PEB's findings and recommendations.

9.  On 3 February 2004, she 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.

10.  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.

11.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  She contends her condition did not exist prior to service and her discharge should be changed to a medical retirement.

2.  She contends her 1997 physical examination shows she did not have flat feet on entry.  It is noted her SF 88, dated 23 April 1997, shows her feet were rated normal.  However, this was a gross physical examination by a physician who was not a specialist in feet or orthopedics.  As long as the feet appeared to be grossly normal, "normal" was the appropriate designation.  Her entry physical is not documentation that she did not have flat feet prior to entry.  Flat feet are, with few exceptions, congenital.  

3.  She contends her arches fell when she was in Kuwait.  Increased activity while wearing body armor may cause symptoms she had not previously experienced but it is not an indication that her arches fell when in Kuwait. 
  
4.  She contends she was unfit due to flat feet and the MEB physician stated her condition was incurred while entitled to basic pay.  The MEB physician, a podiatrist, found she did not meet retention standards due to shin splints.  He described her arches as moderately flat but did not refer "flat feet" to the PEB.  When he stated her condition started while entitled to basic pay he was talking about shin splints which began in 1998 (she entered the service in 1997) and occurred intermittently with increased activity.  The bone scan, incidentally, is used to detect areas of inflammation.  Her bone scan was negative.  Shin splints are a temporary condition that improve with a change in activity.  Her leg pain was incompatible with continued military service and she wished to be separated.  Shin splints are thought to be due to a structural abnormality in the knees, legs, ankle, or feet.  Sometimes no abnormality can be identified but, uniformly, the inflammation resolves with rest (the bone scan in this case did not show any inflammation).  It is likely that the PEB found the applicant was unfit due to the limitations of her profile and that the temporary cause was shin splints and arch pain secondary to the preexisting problem of flat feet. 

5.  In 2003 a PEB found her physically unfit for an EPTS condition and recommended that she be separated from the service without disability benefits.  She concurred with these proceedings on 21 October 2003.  

6.  There is insufficient evidence to show the applicant's PEB findings were incorrect, that the applicant's shin splints did not exist prior to her service in the Army, that her leg condition was permanently aggravated by her Army service, and that the recommendation for separation without benefits was not in compliance with law and regulation.  Therefore, there is no basis for granting the applicant's request for a medical retirement.

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)                                         AR20110009736



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ABCMR Record of Proceedings (cont)                                         AR20110009736



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