BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002272 


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 his honorable discharge be changed to a medical discharge.

2.  The applicant states:

* he should have had a medical board 
* the evidence shows he should have been given a disability rating
* the injuries that need to be addressed are flat feet (pes planus with plantar fasciitis), cold weather frostbite, and a skin condition
* all three conditions are chronic to this day
* these injuries began when he was on active duty
* these conditions are being treated by the Department of Veterans Affairs (VA) now
* if proper information had been given during his outprocessing, the later injuries could have been lessened
* his job of 18 years medically retired him in 2008    

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty).
* service medical records
* VA medical records
* medical 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 15 August 1984 for a period of 
3 years.  He completed his training and was awarded military occupational specialty (MOS) 31K (combat signaler) and later MOS 31D (mobile subscriber equipment transmission system operator).  On 10 June 1987, he was honorably discharged for immediate reenlistment.  He reenlisted on 11 June 1987 for a period of 3 years.  

3.  He provides service medical records which show:

* he had a chronic history of pseudofolliculitis barbae (skin condition) and he was issued a temporary profile for ingrown facial hair (pseudofolliculitis barbae) in 1989
* he complained of flat feet (date is illegible)
* he was treated for a cold weather injury to his toes in January 1990

4.  On 10 June 1990, he was honorably released from active duty for expiration term of service. 

5.  He was honorably discharged from the U.S. Army Reserve on 14 August 1992.

6.  He provides medical records, dated 2007 and 2009, which show he was diagnosed with:

* bilateral heel pain
* back pain
* pes planus, bilateral
* chronic bilateral plantar fasciitis
* chronic lumbalgia
7.  He also provides VA medical records, dated 2007 and 2012, which state:

* he was diagnosed with mild pseudofolliculitis and folliculitis of the scalp 
* his rated disabilities included flat foot condition (10%), dermatophytosis (0%), and cold injury residuals (0%)
* he was diagnosed with bilateral knee arthritis 

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  It states that 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 the service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

10.  Title 38, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been medically discharged rather than honorably discharged.



2.  There is no evidence of record and the applicant did not provide any evidence that shows a medical condition rendered him unable to perform his duties.  Therefore, there is insufficient evidence to show he was eligible for physical disability processing and there is no basis for a medical discharge.

3.  It is acknowledged the VA has granted him disability ratings for a flat foot condition, dermatophytosis, and cold injury residual .  However, an award of a VA rating does not establish entitlement to medical retirement or separation from the Army.  Operating under different laws and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual's civilian employability.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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)                                         AR20130002272





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130002272



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1