IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110017195 


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, the narrative reason for her separation be changed to a medical discharge.

2.  The applicant states, in effect, her medical condition did not exist prior to service and she cannot qualify for Post-9/11 GI Bill education benefits with the current narrative reason for separation listed as "Disability, existed prior to service" on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  The applicant provides her DD Form 214 and a letter from the Department of Veterans Affairs, dated 27 December 2010.

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 records show she enlisted in the Regular Army on 24 October 2002.  Her complete medical records were not available for review.

3.  On 3 August 2004, a Report of Medical Board, from the Naval Medical Center, Portsmouth, VA, noted she was first seen in the Podiatry Clinic in July 2003 with a history of ankle pain, swelling, and soreness to the right ankle and bilateral bunion formations.  She was diagnosed with:

	a.  degenerative joint disease (osteoarthritis), right medial ankle, deltoid complex, unresponsive to light duty and decreased activities, existed prior to entry, not service aggravated; and

	b.  first metaphalangeal joint pain, residual after bunionectomy, right foot, in February 2004, existed prior to entry, not service aggravated

4.  The Medical Board opined that her conditions interfered with the reasonable performance of her assigned duties and referred her case to the U.S. Army Reviewing Authority for a fitness for duty determination.

5.  She was notified of the board results on 3 August 2004.  She disagreed with the findings that the condition existed prior to service.  She stated that the first sign of symptoms, as annotated in her medical records on 3 February 2003, occurred during basic training.  This entry also indicated her symptoms began two months earlier in January 2003 and were caused from wearing boots that were too small.  She contends there was no evidence of foot problems found during any of her medical prescreenings.

6.  The board reviewed the member's rebuttal and the remainder of the findings and the recommendation remained the same. 

7.  On 12 August 2004, an addendum to the medical board report was done after she presented to the Gastroenterology Clinic in August 2004 for evaluation of possible celiac disease.  The board diagnosed her with:

* celiac disease
* hiatal hernia
* possible gastroesophageal reflux disease

8.  The board found her fit for full duty provided that she had access to a gluten free diet.



9.  On 21 January 2005, a medical evaluation board (MEB) convened and diagnosed her with:

* degenerative joint disease, right medial ankle (EPTS)
* first metaphalangeal joint pain after bunionectomy (EPTS)
* celiac sprue disease
* gastroesophageal reflux
* hiatal hernia

10.  The MEB found all conditions medically unacceptable and recommended that she be referred to a PEB.  She indicated that she did not desire to continue on active duty and concurred with the MEB findings.

11.  On 31 January 2005, an informal PEB convened at Washington DC.  The PEB reviewed the medical evidence of record and concluded that there was sufficient evidence to substantiate an EPTS condition for her right ankle, foot pain, and degenerative joint disease of the foot for which she was now found unfit.  Further, because her conditions were EPTS they were not compensable under the Army Physical Disability System and the proper disposition was separation from the Army without entitlement to disability.  On 7 February 2005, after being counseled on her rights, she concurred with the findings and waived her right to a formal hearing.

12.  On 24 March 2005, she was discharged by reason of disability, EPTS, as determined by a PEB.  She had completed 2 years, 5 months, and 1 day during this period of active duty that was characterized as honorable.

13.  She provides a certificate of eligibility from the Department of Veterans Affairs which states she is currently receiving 80 percent of the benefits payable under the Post-9/11 GI Bill.  She also has a combined service-connected evaluation rating of 40 percent but is being paid at the 100 percent rate because she is unemployable due to her service-connected disabilities.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 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.
15.  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.

16.  Army Regulation 635-40 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 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.

17.  The National Institute of Health's (NIH) online medical reference service at http://health.nih.gov/topic/Osteoarthritis describes degenerative joint disease, also known as osteoarthritis, as a joint disease that mostly affects cartilage.  Cartilage is the slippery tissue that covers the ends of bones in a joint.  Healthy cartilage allows bones to glide over each other.  It also helps absorb shock of movement.  In osteoarthritis, the top layer of cartilage breaks down and wears away.  This allows bones under the cartilage to rub together.  The rubbing causes pain, swelling, and loss of motion of the joint.  Over time, the joint may lose its normal shape.  Also, bone spurs may grow on the edges of the joint.  Bits of bone or cartilage can break off and float inside the joint space, which causes more pain and damage.

18.  The NIH online medical reference service also states that precursors of osteoarthritis are:
* being overweight 
* getting older 
* joint injury
* joints that are not properly formed
* a genetic defect in joint cartilage
* stresses on the joints from certain jobs and playing sports



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the narrative reason for her separation be corrected to show she was discharged due to a disability.

2.  She contends the problems with her feet did not exist prior to service and she successfully completed all medical prescreening with no indicators of feet problems.  Further, the initial symptoms occurred in basic training and the medical authority indicated her medical condition was caused by wearing boots that were too tight.

3.  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.  The fact that she reported symptoms while in basic training can only be considered coincidental and are insufficient evidence to say her medical condition was positively caused and/or aggravated by her military service.

4.  Her records were evaluated by an MEB that referred her to a PEB.  The PEB found her medically unfit and found compelling evidence to support a finding that she had an EPTS condition that was not permanently aggravated by military service.  The PEB recommended her separation by reason of physical disability without entitlement to severance pay and she concurred with the findings and recommendation.  She has provided insufficient evidence to show the EPTS determination was improper.  Accordingly, the PEB's recommendation to discharge her for disability without a rating and without benefits was appropriate.

5.  In view of the foregoing, her 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 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)                                         AR20110017195





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ABCMR Record of Proceedings (cont)                                         AR20110017195



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