IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120006312 


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 that his discharge by reason of physical disability that existed prior to service (EPTS) be voided and changed to show that he was discharged by reason of permanent disability with severance pay. 

2.  The applicant states, in effect, that he was unjustly discharged for physical disability that was EPTS and was denied service connected disability and severance pay.  He goes on to state that given his service-connection by the Department of Veterans Affairs (VA) he should receive the severance pay and service connection he deserved at the time of his discharge.

3.  The applicant provides copies of his DD Form 214 and copies of his VA treatment records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board grant the applicant’s request for disability separation and severance pay.

2.  Counsel states, in effect, that the applicant was unjustly discharged from the service due to a condition that was EPTS; however, there is no evidence in the medical records to show either before or after his service that the conditions existed prior to his service and all of the evidence suggests that his condition was aggravated by military service.  Accordingly, his discharge should have been for 


medical disability.  He also states that the medical board erred in its determination by discharging him without severance pay.  Additionally, since the VA recognized that his foot condition was service connected in 2011, it is apparent that he should have been granted disability compensation.

3.  Counsel provides a copy of the medical board proceedings and copies of his treatment records.

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 23 February 1976 for a period of 4 years, training as an infantryman, a cash enlistment bonus and assignment to Fort Carson, Colorado.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training as an infantryman at Fort Benning, Georgia and was transferred to Fort Carson for his first assignment.

3.  On 2 February 1977, a medical board diagnosed the applicant as having hallux valgus, with limitations of dorsification and plantar flexion bilaterally apparently resultant from a congenital pes planovalgus (flat foot).  It noted that due to the severity of the hallux valgus, the applicant was not able to wear a standard military boot or low quarter shoes and was limited to wearing soft tennis shoes.  The board determined that he was medically unfit based on a condition that was EPTS.  It also determined that the condition was not incident to service but that it was aggravated by military service.  The board recommended that he be expeditiously discharged. 

4.  The applicant indicated that he did not desire to continue on active duty and the board’s findings and recommendations were approved. 



5.  On 14 April 1977, the applicant submitted a request for expeditious discharge under the provisions of Army Regulation 635-40, paragraph 5-3a(3) and indicated that he concurred with the findings and recommendation of the medical board.

6.  On 2 May 1977, the appropriate authority approved his request for discharge.

7.  Accordingly, he was honorably discharged on 5 May 1977 under the provisions of Army Regulation 635-40, paragraph 5-3e(3) due to a physical disability that was EPTS as determined by a medical board.  He had served        1 year, 2 months and 13 days of active service. 

8.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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.  

9.  Army Regulation 635-40, paragraph 5-3e(3), in effect at the time provided the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment that existed prior to service.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities which would have temporarily or permanent disqualified the member for entry into military service, had it been detected at the time of enlistment.   

10.  Army Regulation 635-40, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of 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.  Conditions that are deemed to be EPTS are not compensable. 

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or 


injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different 
policies, to arrive at different positions.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus 
compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.
    
DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reason were appropriate under the circumstances.  While there are indications that the wear of military footwear aggravated his condition, there is insufficient evidence to show his congenital condition was permanently aggravated by his service.

2.  An award of a VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different positions. 

3.  Therefore, in absence of sufficient credible evidence to show the applicant was not properly diagnosed, evaluated, and discharged in 1977, there appears to be no basis to grant his request for a discharge due to physical disability with severance pay.



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)                                         AR20120006312





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006312



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1