IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130004295 


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 her discharge be revoked and that she be retired by reason of permanent disability.

2.  The applicant states, in effect, that the medical review boards conducted under the Physical Disability Evaluation System (PDES) did not consider all of her medical conditions despite the fact that she listed them on her exit exam.  She goes on to state that she believes that she would have been medically retired if all of her conditions (chronic sinusitis, ankle and foot problems, knee pain and myalgia) had been properly considered.

3.  The applicant provides a one-page letter explaining her application, DD Form 214 (Certificate of Release or Discharge from Active Duty), her VA Rating Decision, and copies of her 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 12 November 1992 for a period of 4 years and training as a personnel administration specialist.   At the time of her enlistment she was diagnosed as having pes planus (flat feet).  She completed her training and remained on active duty through continuous reenlistments.  She was promoted to the pay grade of E-6 on 1 March 2003.

3.  On 22 June 2004, the applicant was given a permanent physical profile of 113111 for flat feet with limitations of no running, no marching, no road marches, foot gear of choice, no jumping, and no prolonged standing more than 1 hour.

4.  On 18 January 2005 while stationed at Fort Stewart, Georgia, the applicant was evaluated by a medical evaluation board (MEB) because her commander indicated that she was unable to perform the duties of her military occupational specialty (MOS) due to chronic foot and ankle problems.  The MEB evaluated the applicant’s condition of bilateral foot pain secondary to bilateral pes planus and right ankle degenerative joint disease and determined that she should be referred to a Physical Evaluation Board (PEB).  The applicant concurred with the findings and recommendations of the MEB. 

5.  On 1 February 2005, a PEB convened at Fort Sam Houston, Texas to evaluate the applicant’s condition of bilateral foot pain secondary to bilateral pes planus and right ankle degenerative joint disease.  The PEB determined that her condition existed prior to service but was aggravated by such service.  The PEB recommended that she be discharged with severance pay and a disability rating of 10%.  The applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of her case.  The PEB was approved on         10 February 2005.

6.  Accordingly, she was honorably discharged on 28 April 2005 under the provisions of Army Regulation 635-40, due to disability with severance pay.  She had served 12 years, 5 months, and 17 days of active service and received $66,700.80 in severance pay benefits.

7.  On 30 November 2011, the Department of Veterans Affairs (VA) awarded the applicant a 10% service-connected disability rating for her right ankle/foot condition.

8.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
9.  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 there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Additionally, 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

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.  An award of a VA rating does not establish error or injustice on the part of the Army.  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 affects the individual's employability.

11.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence in this case suggests that the applicant's disabilities were properly rated in accordance with the VA Schedule for Rating Disabilities and her separation with severance pay was in compliance with laws and regulations in effect at the time.

2.  The applicant was found unfit for duty and she was assigned a disability rating of 10 percent for her unfitting condition of (bilateral foot pain secondary to bilateral pes planus and right ankle degenerative joint disease) as it existed at the time of her MEB and PEB hearings.  She concurred with the findings and recommendation of the MEB and PEB.  There is no evidence to show her other conditions rendered her unfit to perform her duties, and there is no evidence to show he had a physical profile for any condition other than pes planus at the time of her MEB and PEB.  Department of the Army disability decisions are based upon observations and determinations existing at the time of the PEB hearing.  The Department of the Army rating becomes effective the date that permanency of the diagnosis is established.

3.  The applicant has not provided sufficient evidence to show she was not afforded proper disability processing or that the evaluation and the rating rendered by the PEB were incorrect.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130004295



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ABCMR Record of Proceedings (cont)                                         AR20130004295



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