IN THE CASE OF:	  

		BOARD DATE:	  21 February 2012

		DOCKET NUMBER:  AR20110016581 


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 the narrative reason of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged. 

2.  The applicant states he ruptured his achilles tendon while stationed overseas in Korea.  Since the injury he has experienced foot pain and deformity.  The Department of Veterans Affairs (VA) informed him that he is not receiving his maximum disability because of the error on his DD Form 214. 

3.  The applicant provides:

* memorandum for record
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Physical Disability Information Report
* appointment sheet
* 11 pages of medical records from the VA medical center in Atlanta, GA
* 2 page problem list/medical record
* letter from the VA medical center in Atlanta, GA

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 7 March 2003 and held military occupational specialty 88M (Motor Transport Operator).  He served in Korea for one year.  His last duty assignment was Fort Eustis, VA.  The highest grade he attained while serving on active duty was specialist/E-4.

3.  His military medical records are not available for review in this case.

4.  He provided a DA form 199, dated 2 March 2005.  This form shows:

	a.  he had bilateral foot pain without any specific history of trauma or injury.  Physical examinations noted he had pes planus (flat feet), a congenital condition, as well as hallux deformities and acne-ridged hammer digit deformities bilaterally.  This condition existed prior to service (EPTS).  There was no evidence of permanent service aggravation; 

	b.  after reviewing the medical evidence of record the PEB concluded there was sufficient evidence to substantiate an EPTS condition making him unfit.  His condition had not been permanently aggravated by service but was the result of natural progression; and

	c.  EPTS conditions are not compensable under the Army Physical Disability System, the proper disposition was separation from the Army without entitlement to disability benefits.

5.  He was discharged on 18 April 2005.  His DD Form 214 shows in:

* Item 23 (Type of Separation) - "Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4)"
* Item 26 (Separation Code) - "JFM"
* Item 28 (Narrative Reason for Separation) - "Disability. ETPS, PEB" 

6.  He provided 13 pages of medical records from the VA medical center in Atlanta, GA, as evidence.  The medical records essentially state that he was diagnosed with a claw toe deformity on the 2-4 digits of his left foot, a hammer toe on the 5th digit of his left foot and a laterally deviated hallux of his left foot.  Records indicate that he had surgery to repair these disorders on 12 October 2011.

7.  He provided a 2 page problem list/medical record which shows he was seen on/for:
* 9 November 2004 - enthesopathy of ankle and tarsus-unspecified  congenital pes planus - 9 November 2004
* 9 November 2004 - hammer toe 
* 9 November 2004 - lesion of planter nerve
* 21 November 2005 - foot pain
* 23 November 2005 -hammer toe deformity

8.  He provided a letter from the VA medical center in Atlanta, GA, which states he had surgery on his left foot on 29 September 2011.

9.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

10.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which existed prior to service or occurred in the line of duty and not due to the Soldier's misconduct.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

11.  Army Regulation 635-40 states, in pertinent part, 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 hereditary 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.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  
12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JFM" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay). 

13.  Title 38, United States Code, sections 310 and 331, 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 complete military medical records are not available for review with this case.  However, he submitted a copy of his DA Form 199 which shows he suffered from a medical condition that rendered him unable to reasonably perform the duties of his grade and military specialty.

2.  According to accepted medical principles, the manifestation of a chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.  Consequently, the PEB found him medically unfit and found compelling evidence to support a finding that he had an EPTS condition that was not permanently aggravated by military service and was the result of natural progression. Accordingly, the PEB recommended his separation by reason of physical disability without entitlement to severance pay.

3.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 4-24b(4) due to his EPTS condition.  Absent the medical condition, there was no fundamental reason to convene a PEB.  The underlying reason for his PEB was his EPTS condition.  The only valid narrative reason for separation permitted under that paragraph is "disability, EPTS."  Therefore, the applicant received the proper narrative reason for separation.
4.  Item 28 of his DD Form 214 shows he was medically discharged.  A discharge for an EPTS disability is classified as a medical discharge.

5.  The VA operates under its own policies and may compensate a veteran for any medical condition which they determined to be service related.  Whether that condition was medically disqualifying for retention is not relevant in the VA's determination.  As such, the fact that the VA gave the applicant a disability rating for his medical condition does not establish an error in this case.

6.  In view of the foregoing evidence, the applicant's narrative reason is correct as shown on his DD Form 214 and there is no reason to change it.

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)                                         AR20110016581



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ABCMR Record of Proceedings (cont)                                         AR20110016581



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