BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120000808 


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, that her discharge be changed to a medical retirement or that she be granted a disability rating.

2.  She states, in effect, she should have been given a medical retirement due to her condition being service connected.

3.  She provides copies of:

* Standard Form (SF) 88 (Report of Medical Examination)
* Memorandum, dated 27 June 2000, Subject:  Duty Performance Evaluation Letter
* Optional Form 275 (Medical Evaluation Board (MEB)), dated 18 August 2000
* MEB Proceedings, dated 15 September 2000
* Physical Evaluation Board (PEB) Referral Transmittal Document, dated 
19 September 2000
* Letter to the President, U.S. Army PEB, dated 26 September 2000
* Memorandum, dated 10 October 2000, Subject:  Nonconcurrence/ Rebuttal to PEB Findings
* PEB Proceedings, dated 30 November 2000
* Department of Veterans Affairs (VA) letter, dated 13 December 2001  
* VA rating decision, dated 10 February 2010
* DD Form 294 (Application for Review by the Physical Disability Board of Review), dated 17 October 2011
* VA Form 3288 (Request for and Consent to Release Information from Individual's Records)
* A letter from the Department of the Air Force Review Boards Office, dated 26 October 2011

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 enlistment medical examination, dated 20 May 1997, shows the applicant was found to have a "(deformity) of 2d toe-asymptomatic"; however, the medical provider found her qualified for enlistment.

3.  She enlisted in the Regular Army on 22 August 1997.  She completed training and was awarded military occupational specialty (MOS) 14T (Patriot Missile Crewmember).

4.  The applicant's medical records are not contained in the available records.

5.  The 18 August 2000 MEB proceedings show:

	a.  Chief Complaint:  Left great and second toe pain and deformity that does not allow her to exert herself in more than an ambulatory fashion.

	b.  History of Present Illness:  When she was ten or eleven years of age her cousin dropped a weight on her toes and she sustained an injury and subsequent deformity to the great toe and second toe on the left foot.  While on active duty she was referred to the orthopedic clinic approximately a year ago secondary to this deformity even though there were no symptoms stemming from the deformity itself.

	c.  Her condition of "Left foot pain, secondary to incompetent flexor mechanisms of the great toe and small toe" were not incurred while she was entitled to base pay; it existed prior to service (EPTS) and was permanently aggravated by her military service.  

	d.  The board recommended referral to a PEB.  She agreed with the findings and recommendation. 

6.  On 15 September 2000, the MEB proceedings were approved and referred her to a PEB.  

7.  In a letter, dated 26 September 2000, to the PEB president, the applicant expressed her disagreement with the decision made in her case.  She indicated that she did not understand how she could be fit to join the Army with her toes the way they were, but now she was unfit to serve.  She was able to perform her job but she could not run after she had surgery because she could not bend her toes.  She had to wear sneakers to work every day because she could not get into her boots or other shoes.  She was told by her doctor that she would never be able to bend her toes.  She felt the Army experimented on her, because she was not informed of the possible outcome of the surgery prior to receiving it.

8.  The memorandum from the U.S. Army Physical Disability Agency (USAPDA), dated 10 October 2000, noted her disagreement with the PEB findings and informed her that the USAPDA had concluded her case was properly adjudicated by the PEB. 

9.  The proceedings of the formal PEB that convened on 30 November 2000 found:

	a.  That she suffered from "Chronic pain left 1st and 2nd toes and metatarsal phalangeal joints with past history of fracture with deformity of those toes due to traumatic injury at age 11 or 12.  The deformity was noted on her enlistment physical, dated 20 May 1997, first symptomatic August 1998, surgery recommended to correct valgus and cock-up toe deformity (proximal osteotomy and resection arthroplasty performed September 1999).  Second surgery consisted of an exterior tendon release, 2nd toe, in April 2000.  She now has chronic left-sided foot pain on ambulation precluding further military service.  This surgical result does not represent an unexpected adverse result of surgery performed for an EPTS condition, and as such, it is not compensable in accordance with Army Regulation 635-40, paragraph 3-3."

   b.  Her unfitting condition was found to be neither service incurred nor permanently aggravated by military service.  Her impairment originated while not entitled to basic pay and had increased only to the extent of its accepted normal and natural progress; therefore, there was no permanent service aggravation.  Because her condition was not service incurred or permanently aggravated, she was not eligible for disability compensation and therefore separated without disability benefits.  

10.  On 22 December 2000, she was honorably discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of paragraph 4-24b(4) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), by reason of disability – EPTS.  This form further shows she completed a total of 3 years, 4 months, and 1 day of creditable active military service.  Item 26 (Separation Code) shows the entry "JFM" and item 28 (Narrative Reason for Separation) shows the entry "Disability, Existed Prior to Service, PEB."

11.  A VA rating decision, dated 10 February 2010, shows the VA granted her service connection at the rate of 10%, effective 21 September 2009, each for left first and second toe fractures, status post proximal phalanx osteotomy of the great toe and resection arthoplasty of the second toe, and tinnitus.

12.  In her application to the Physical Disability Board of Review, dated 
17 October 2011, she stated that she was fit for duty when she entered the service but she left unfit for duty.  Her foot was asymptomatic (presenting no symptoms, exhibiting, or producing no symptoms).  Due to the aggravation to her toes while in the service she had two surgeries that left her unfit for service.  She was not given the opportunity to choose another career.  She did not receive a (disability) rating.  In the short period of time before her first surgery she received various medals and coins for great service. 

13.  On 26 October 2011, the Physical Disability Board of Review returned her request without action.  Her case was not eligible for review by that board because she was separated before 11 September 2001 and she was separated without disability benefits.  The Physical Disability Board of Review exists to review the level of disability of service members who were separated after 
11 September 2001. 

14.  Army Regulation 635-40 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.  

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 was EPTS or occurred in the line of duty, 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 also 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 EPTS.

17.  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).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have received a medical retirement or a disability rating because she was fit for duty when she entered the military but she left unfit for duty.  

2.  The medical examination conducted during her enlistment processing shows a "(deformity) of 2d toe-asymptomatic"; however, the medical provider found her qualified for enlistment.

3.  The evidence of record shows that due to foot pain she had two corrective surgeries.  Her medical condition rendered her unable to perform her duties and her condition was reviewed by an MEB and informal PEB.  She nonconcurred with the informal PEB and a formal PEB convened and found her unfitting condition to be neither service incurred nor permanently aggravated by military service.  The formal PEB recommended separation by reason of physical disability without entitlement to severance pay.

   a.  According to the 18 August 2000 MEB the applicant was referred to the clinic even though there were no symptoms stemming from the deformity in her toes itself.

   b.  The pain that led to her finding of "unfit" was not (as required by 
Army Regulation 635-30, paragraph 3-3) an "unexpected adverse effect, over and above known hazards, directly attributable to treatment, anesthetic, or operation performed or administered for a disease or medical condition existing before entry on active duty."  In other words, pain is a known adverse affect of surgery (like infection) for which the patient is counseled preoperatively.  It is not an adverse effect that is "over and above known hazards."

4.  Her narrative reason for separation was assigned based on separation under the provisions of paragraph 4-24b(4) due to a condition of symptomatic accessory navicular of the left foot which was an EPTS condition.  Therefore, the only valid narrative reason for separation permitted under paragraph 4-24b(4) is "disability, EPTS."  She has not provided sufficient evidence or a compelling argument to show otherwise.  Her rights were fully protected and all requirements of the law were met.  Therefore, she is not entitled to the 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 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)                                         AR20100016003



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000808



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1