MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 July 2000                  
	DOCKET NUMBER:   AR2000038897

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his physical disability rating be increased.

APPLICANT STATES:  That there is no proof that his flat feet existed prior to service (EPTS).  There is evidence the problem was permanently aggravated by his service.  

COUNSEL CONTENDS:  That the Board should give careful and sympathetic consideration to all the evidence of record in rendering a fair and impartial decision.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 7 January 1992.  He completed basic training and advanced individual training and was awarded military occupational specialty 75B (Personnel Administrative Specialist).

On 26 July 1996, the applicant was examined by a medical evaluation board (MEB).  The MEB noted the applicant’s complaint was painful flat feet with bilateral knee pain.  He complained of bilateral burning sensation in both feet with the pain increasing for over a year.  Prolonged standing and running caused pain in his feet and he could not wear combat boots.  He had bilateral knee pain since 1994.  An examination of his right and left foot showed no edema; no pain with range of motion; tender to palpation; and bilateral pronated feet with marked talon bulging.  On 7 August 1996, he was referred to a physical evaluation board (PEB) with a diagnosis of bilateral pes planus with secondary plantar fasciitis, not responding to conservative treatment and bilateral patellofemoral syndrome.  The MEB determined the conditions had been incurred while entitled to base pay, not EPTS, and unknown as to whether permanently aggravated by service.  The applicant agreed with the MEB’s findings and recommendation.

The MEB may have changed its determination that the applicant’s conditions were not EPTS.  On 17 September 1996, the U. S. Army Physical Evaluation Board returned his disability case to Fort Bragg, NC noting that the PEB was unable to adjudicate the case based on the current information.  It noted that under the provisions of Army Regulation 40-3, chapter 7-8 paragraph 3, “when an EPTS condition is judged to be aggravated by service, the severity and circumstances will be clearly indicated in the narrative summary.”  The PEB needed to know the specific severity and circumstances of permanent service aggravation on the applicant’s condition of flat feet.  The narrative summary should also have indicated whether or not the impairment was actually due to the natural progression of the preexisting condition.

On 2 December 1996, an informal PEB determined that the applicant’s medical conditions existed prior to service – not permanently service aggravated and therefore not ratable.  The applicant did not concur in the findings and demanded a formal hearing.

On 9 April 1997, a formal PEB found the applicant unfit for duty by reason of his having bilateral patellofemoral syndrome with patella grinding with a 10 percent disability rating.  He was also found unfit for duty by reason of bilateral pes planus with secondary plantar fasciitis and secondary bilateral patellofemoral syndrome.  The PEB determined that this was an EPTS condition that was permanently aggravated by service; however, since the service component could not be determined it could not be rated.  On 9 April 1997, the applicant concurred in the findings and recommendation of the formal PEB.  

On 4 June 1997, the applicant was discharged by reason of disability, with severance pay, in pay grade E-4.  He had completed 5 years, 4 months and      28 days of creditable active service.

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.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  Appendix B, paragraph 10 states that when considering EPTS cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, less natural progression occurring during active service.  This will apply whether the particular condition was noted at the time of entrance into active service or is determined upon the evidence of record or accepted medical principles to have existed at that time.  Hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless  service-aggravated complications are clearly documented.

Army Regulation 635-40, paragraph 3-3 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 of these conditions include scars, supernumerary parts, congenital malformations and hereditary conditions and 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. 

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant’s disability was properly rated in accordance with the VASRD.  According to accepted medical principles, certain abnormalities such as congenital malformations exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Flat feet are a congenital malformation.  Since there was no clearly documented evidence of service-aggravated complications and the service component of the disability could not be determined a disability rating could not be assigned.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __amc___  __klw___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038897	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.02	
2.		
3.		
4.		
5.		
6.