IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110021442 


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, change of his honorable discharge to a medical discharge or retirement with compensation.

2.  The applicant states:

* he was discharged under an erroneous code
* he was not given the agreed-upon compensation based on his mental health status
* he lost his 11-month old daughter
* based on his reenlistment code, he is not eligible to return to military service
* he was not afforded the right to sign his discharge document

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Congressional correspondence
* A Medical Board Summary, dated 22 October 2001
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 5 November 2001
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 3 December 2001
* DD Form 2808 (Report of Medical Examination), dated 20 November 2001
* 
DD Form 2807-1 (Report of Medical History), dated 19 November 2001
* DD Form 2697 (Report of Medical Assessment), dated 8 August 2001
* DA Form 3349 (Physical Profile), dated 6 August 2001
* A memorandum, subject:  Duty Performance Evaluation Letter for (Applicant), dated 13 August 2001
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 August 2001
* Medical record documents
* DA Form 2-1 (Personnel Qualification Record)
* Enlisted Record Brief
* Leave and Earnings Statement for the period 1-31 October 2001
* DA Form 31 (Request for Authority for Leave), undated
* A memorandum, subject:  Army Career and Alumni Program/Transition Assistance Program
* Memoranda, dated 12 December 2001 and 20 December 2001, subject:  Rebuttal of PEB Findings
* Self-authored letter, dated 6 December 2001, reference:  Reasons for Reconsideration for Medical Review

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.  On 9 August 1995, the applicant underwent a medical examination for enlistment in the Army.  His examination noted he had moderate pes planus (flat feet).  The medical doctor determined he was qualified for enlistment.

3.  He enlisted in the Regular Army on 3 January 1997.

4.  On 6 August 2001, he was issued a permanent "P3" physical profile for severe flat feet.  His limitations were listed as no running, jumping, marching, 

lower extremity physical training, or stretching.  He could walk, stand, bicycle, swim, and weight train to his own tolerance/pace.

5.  On 13 August 2001, in a letter to the PEB Liaison Office, Fort Benning, GA, the commander stated the applicant was a supply specialist and his performance of duty was above average.  However, due to his medical condition, he had difficulty performing the duties normally required of a supply specialist.  He recommended the applicant's administrative separation from the Army.

6.  The Medical Board Summary sheet, dated 22 October 2001, provides a history of the applicant's complaint.  It states:

The patient indicates he started having problems with his feet and ankles bilaterally in basic training.  There was no history of trauma.  They just started hurting with running and road marching.  The pain has been present since then and has gotten worse.  The pain feels like an ache and occurs in equal intensity in the foot and ankle bilaterally.  The pain is present everyday all day long.  The pain is bad in the morning when he first gets up and then during the day it gets worse until the evening when the pain is most significant.  The pain is relieved by getting off his feet and resting.  The pain is mostly on the bottom of both feet and on the inside of both ankles, however, the pain is starting to occur on the top of the foot and along the front of the ankles.  The patient has been treated with Motrin, Tylenol, and aspirin without relief.  There was no help from arch supports.  The patient has been on temporary profile essentially since 1998 with just period lifting of the profile [sic].

7.  The laboratory and X-ray demonstrated a severe flat foot deformity bilaterally with no calcaneal inclination angle.  He was assessed with chronic foot and ankle pain bilaterally related to significantly flat feet.  The physician indicated the applicant's condition existed prior to service and/or was service-aggravated.

8.  On 5 November 2001, an MEB was convened and diagnosed him with chronic foot and ankle pain bilaterally related to significantly flat feet.  He was referred to a PEB.

9.  On 19 and 20 November 2001, he underwent a medical examination.

	a.  Item 40 (Psychiatric (Specify Any Personality Deviation)) of his DD Form 2808 shows he answered "Normal."

	b.  Item 17 (Have You Ever Had or Do You Now Have) of his
DD Form 2807-1 shows he answered "No" to the following items:

* nervous trouble of any sort (anxiety or panic attacks)
* loss of memory or amnesia, or neurological symptoms
* received counseling of any type
* been evaluated or treated for a mental condition
* attempted suicide

	c.  Item 17 of his DD Form 2807-1 shows he answered "Yes" to two items:  frequent trouble sleeping and depression or excessive worry.  He explained that his daughter died 2 months ago and he had been very depressed and had problems sleeping.

10.  On 3 December 2001, a PEB was convened and considered his condition of chronic foot and ankle pain.  The PEB found his medical and physical impairment prevented reasonable performance of his duties as required by his grade and military specialty.  The board also found compelling evidence to support a finding that his current condition existed prior to service and was not permanently aggravated by such service.  The board found he was physically unfit with a combined rating of 0%.  The board further recommended separation from the service without disability benefits.

11.  On 5 December 2001, he initialed item 13 (Election of Soldier) of the PEB indicating he concurred with the board's findings and recommendations and waived a formal hearing of his case.

12.  On 6 December 2001, he requested reconsideration of the PEB's findings and recommendations.  He stated after receiving the findings of the PEB, he felt the information was not accurate or comprehensive.  He disagreed with the statement he had "perpetually" flat feet and stated that prior to military service he did not experience any foot problems or ankle pain.  He added he was told the bones in his feet had serious deformities due to his daily military activities.  He questioned the military's assumption that the bones in his feet would heal after his departure from service and requested his records be reviewed again so the board could make a reasonable decision on his future and his health.

13.  On 12 December 2001, the PEB Liaison Officer (PEBLO), Fort Sam Houston, TX, responded to the applicant's reconsideration letter.  After careful consideration, the PEB found that no changes to the original findings were warranted.  He said in reaching this decision, the following specifics pertaining to the applicant's rebuttal were considered:

	a.  His rebuttal contained no objective medical information which warranted a change in the board's rating.

	b.  Flat feet were congenital or developmental, not resulting from an injury.  Acquired flat feet deformities were extremely rare, occurring only in rare neurologic disorders.  His symptoms were the result of the stresses of military training and discontinuing the stress should result in the symptoms subsiding.

14.  On 20 December 2001, the U.S. Army Physical Disability Agency (USAPDA) reviewed his rebuttal and his entire case file.  Based on its review, no change was warranted and his case was forwarded to the Physical Disability Branch for final processing.

15.  The applicant's record is void of any evidence that shows he was suffering from mental health issues.

16.  He was honorably discharged on 14 February 2002 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4), by reason of disability, existed prior to service, PEB.  Item 21 (Signature of Member Being Separated) of the DD Form 214 he was issued at the time contains the statement, "Soldier Not Available to Sign."  Item 26 (Separation Code) shows a separation program designator (SPD) code JFM and item 27 (Reentry Code) shows the entry "3."  He completed 5 years, 1 month, and 12 days of creditable active service.

17.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

	a.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

	c.  Recommendations of the informal PEB are recorded on a DA Form 199.  Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include:

* concurrence with the findings and recommendations and waiver of a formal hearing
* nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing
* demand for a formal hearing with or without personal appearance
* choice of counsel if a hearing is demanded

Soldiers indicate their elections by placing a checkmark in item 13 and signing and dating the original and the medical treatment facility copies.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JFM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-40, paragraph 4-24b(4) by reason of disability, existed prior to service, PEB.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JFM.

19.  Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

20.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4 states a signature indicates a Soldier has reviewed the form and accepts the information as being correct to the best of his or her knowledge.  When a Soldier is not available (discharged in absentia or physically unable), enter "SOLDIER NOT AVAILABLE TO SIGN."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent a medical examination prior to entry in the Army that noted he had moderate flat feet.

2.  On 5 November 2001, an MEB diagnosed the applicant with chronic foot and ankle pain related to significant flat feet.  On 3 December 2001, a PEB found his medical condition of chronic foot and ankle pain prevented reasonable performance of his duties as required by his grade and military specialty.  The board also found his current condition existed prior to service and was not permanently aggravated by service.  The board determined he was physically unfit and recommended separation from the service without disability benefits.

3.  The applicant rebutted the findings of the PEB, but it was determined his rebuttal contained no objective medical information that warranted a change in the PEB's findings and recommendations.  Additionally, flat feet are normally congenital or developmental.  It was further determined that his symptoms were the result of the stresses of military training and discontinuing the stress should result in the symptoms subsiding.  This appears to have been a proper determination, as the applicant makes no current contentions that his flat feet are still affecting him.  Rather, he now raises issues of his mental health status.

4.  There is no evidence and he has not provided any evidence to show the board recommended compensation for his "mental health status."  In fact, there is no evidence to show he was suffering from mental health issues at the time of his separation.

5.  The evidence further shows he was separated due to disability that existed prior to service.  Therefore, he was assigned an RE code of 3 which is consistent with the reason for his separation.  He failed to show his assigned RE code is in error or unjust.

6.  The regulation allows for the use of the statement "Soldier Not Available to Sign" for those Soldiers who were discharged in absentia.  Therefore, the fact that he was not available and/or afforded the opportunity to sign his DD Form 214 is not sufficient as a basis to approve his request.  
7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110021442



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ABCMR Record of Proceedings (cont)                                         AR20110021442



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