IN THE CASE OF:  

		BOARD DATE:  6 May 2014

		DOCKET NUMBER:  AR20130014525 


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 correction of her discharge with severance pay to show disability retirement.

2.  The applicant states:

	a.  Her medical evaluation board (MEB) noted her conditions of severe pes planus (both feet) and patellofemoral syndrome (both knees).  She believes both conditions rendered her unfit, but the MEB proceedings show only the severe pes planus as unfitting and the patellofemoral syndrome as medically acceptable.

	b.  She was discharged with a 10-percent disability rating.  She believes she should have received the benefit of both knees and both feet along with her gynecological and migraine headache issues.

	c.  She endured a laparoscopic procedure in 1995 in which nothing was located only to have the heavy bleeding and pain return shortly thereafter.  Years after her discharge, she was found to have large fibroid tumors which were medically removed in 2003.  The military was not addressing gynecology thoroughly during that time period.  All the medical conditions should have been considered as they all rendered her unfit for active duty.



3.  The applicant provides:

	a.  a DA Form 3349 (Physical Profile), dated 8 September 1994, for "pain flat feet" and a permanent "4" rating under the lower extremities block.  Item 9 (Other) shows no running, jumping, marching, climbing, and/or prolonged walking (over 2 miles per day);

	b.  emergency and urgent care treatment records showing she was seen and treated for migraine headaches, flat feet, abdominal pain, and lower back pain between 14 October 1994 and her discharge;

	c.  a DA Form 3947 (MEB Proceedings), dated 19 January 1995;

	d.  a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 18 August 1995.

	e.  a DA Form 4700 (Medical Record – Supplemental Medical Data), dated 15 November 1995, showing home care instructions following laparoscopy surgery;

	f.  a DA Form 3349, dated 20 November 1995, recommending 2 days of convalescent leave and limited duty;

	g.  a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 January 1996;

	h.  a Department of Veterans Affairs (VA) Rating Decision, dated 7 August 1996, showing she was awarded service-connection for chondromalacia at a rating of 10 percent each for right and left knee and a 50-percent rating for migraine headaches; and

	i.  numerous pages of medical care documents showing her medical treatment after her separation;

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 4 September 1992.  She held military occupational specialty 74C (Record Telecommunications Center Operator).

3.  In a memorandum, dated 6 January 1995, subject:  Statement for (Applicant) Regarding Pending MEB, the acting operations sergeant states the applicant's physical limitation is patella syndrome affecting both her knees, collapsing arches, and causing lower back pain.  She complains of acute pain because of the excessive jumping up and down to service customers and carrying boxes of messages to the service window, often requiring help from fellow workers.  Processing messages requires collecting and distributing messages to the over 70 organizations  which causes her back pain as well as pain to the wrist she injured last year.  She passed her Army Physical Fitness Test (APFT) but had difficulty walking several days afterward.  She did not take the APFT in October 1994 because of the current problems.

4.  On 10 January 1995, an MEB referred the applicant to a PEB for chronic severe pes planus and patellofemoral syndrome.  The chief complaint was painful feet and knees since basic training.

5.  The applicant agreed with the findings and recommendation of the MEB.  She indicated she did not desire to continue on active duty.

6.  On 18 August 1995, an informal PEB found her unfit for duty for bilateral pes planus and bilateral patellofemoral pain syndrome.  The PEB recommended a disability rating of 10 percent for bilateral pes planus and 0 percent for bilateral patellofemoral pain syndrome.  The PEB recommended her separation with severance pay.  A diagnosis of bilateral pes anserine bursitis was determined to be medically acceptable and a diagnosis of history of bilateral tibial stress fractures was resolved and medically acceptable.

7.  On 22 September 1995, the applicant acknowledged she had been advised of the findings and recommendations of the PEB and received a full explanation of the results and her legal rights pertaining thereto.  She concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.

8.  On 11 January 1996, she was honorably discharged by reason of disability with severance pay.  She completed 3 years, 4 months, and 8 days of active service.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.

	a.  Paragraph 3-1 contains guidance pertaining to the standards of unfitness because of physical disability.  It states 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, rank, or rating.  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.

	b.  Chapter 4 contains guidance pertaining to processing through the Army PDES, which includes convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent.

11.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.

	a.  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 it determines were incurred during military service and subsequently affect the individuals' civilian employability.

	b.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should have received a disability retirement instead of a discharge with severance pay.  Her medical conditions of bilateral pes planus, bilateral patellofemoral pain syndrome, migraine headaches, and gynecological issues should all have been considered unfitting.

2.  Her records show she was evaluated by an MEB and PEB to determine whether she was fit for duty based on her rank and military specialty.  She agreed with the findings and recommendations of the MEB.  She indicated she did not desire to continue on active duty.  An informal PEB found her unfit for duty for bilateral pes planus and bilateral patellofemoral pain syndrome.  The PEB recommended a disability rating of 10 percent and separation with severance pay.  She concurred with the findings and recommendations of the PEB and waived a formal hearing of her case.

3.  She was discharged with severance pay.  She had other physical complaints at the time, including migraine headaches, abdominal pain, and lower back pain.  However, there is no evidence showing any of these medical conditions rendered her physically unfit to perform her duties at the time of her discharge.  The statement from the acting operations sergeant, dated 6 January 1995, described the applicant's physical limitation as patella syndrome affecting both her knees, collapsing arches, and lower back pain.  There is no indication of migraine headaches or other medical conditions affecting the performance of her duties.  Therefore, there is no basis for granting the applicant's request for consideration of those conditions.

4.  The award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.

5.  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.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  While the VA may have determined a service connection for chondromalacia at 10 percent each for her right and left knee and migraine headaches at 50 percent, that does not indicate the Army was in error by discharging her with a 10-percent disability rating for  bilateral pes planus and a 0 percent rating for bilateral patellofemoral pain syndrome.

6.  In view of the foregoing, there is an insufficient 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)                                         AR20120003061



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ABCMR Record of Proceedings (cont)                                         AR20130014525



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