MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  12 December 2000
	DOCKET NUMBER:  AR2000044324

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Lana E. McGlynn		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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: That his records be corrected to show he was retired based on a physical disability.  He indicates the Physical Evaluation Board (PEB) was incomplete and unjust.  He provided partial copies of the Narrative Summary (NARSUM), the Medical Evaluation Board (MEBD), the PEB and treatment records from active duty and the Veterans Administration.  He also provided a copy of an inquiry sheet to his member of Congress and a Leave and Earnings Statement for the period 1 to 31 October 1993. 

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's available military and medical records show:

During the period 2 March 1982 to 1 July 1985, he served in the Regular Army.

During the period 14 November 1985 to 10 March 1986, he served in the Army Reserve Delayed Enlistment Program.

On 11 March 1986, he enlisted in the Regular Army and continued to serve through reenlistments and extensions of service until his discharge.

During the period 10 June 1982 to 28 September 1993, while on active duty, he was treated for foot pain on various occasions.

On 5 October 1993, he was issued a permanent physical profile of L3, for Bilateral Chronic Plantar (sole of the feet) Fasciitis (a sheet or band of fibrous tissue such as lies deep to the skin or forms an investment for muscles and various other organs of the body).

On 26 November 1993, partial MEBD Proceedings show a diagnosis of Chronic Bilateral Planter Fascia, Chronic Bilateral Retrocalcaneal Bursitis, and Hallux Valgus Deformity, bilaterally with a bunionectomy on the left foot.  The MEBD recommended that the patient be referred to a PEB.

On 29 November 1993 (sic), a partial NARSUM indicates a diagnosis of Chronic Bilateral Planter Fascia, Chronic Bilateral Retrocalcaneal Bursitis, and Hallux Valgus Deformity, bilaterally with a bunionectomy on the left foot.  

On 17 December 1993, partial PEB Proceedings found his condition to be Pain, left greater than right, secondary to chronic bilateral retrocalcaneal bursitis, bilateral hallux valgus deformity.  Status post bunionectomy left foot, manifest by pain on prolonged standing, unresponsive to multiple attempts at conservative therapy left greater than right.  His recommended disability percentage was      10 percent.

On 1 March 1994, Formal PEB Proceedings found his condition to be chronic bilateral plantar fasciitis manifested by pain on standing and walking; secondary to flat foot, rated as moderate flat foot, bilateral and pain secondary to chronic bilateral retrocalcaneal bursitis, manifested by heel pain with standing or walking, rated as mild for pain only – left greater than right.  His recommended disability percentage was 20 percent. 

On 13 April 1994, he was honorably discharged under Army Regulation 635-40, physical disability with severance pay of $34,570.80.  His separation document indicates he had 11 years, 5 months and 3 days of creditable service and            9 months and 1 day of inactive service.  

On 8 September 2000, the Medical Advisor, Army Review Boards Agency opined that deterioration in an applicant’s condition as well as advances in technology are compensated by the VA Disability System, for which the applicant is apparently eligible.  The applicant has failed to demonstrate a medical reason for changing either his type of separation or his percentage of disability from the Army.

On 18 September 2000, the applicant was provided a copy of the medical opinion for his acknowledgement/rebuttal.  He failed to respond.

Title 38, United States 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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated 30 percent disabling.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 April 1994, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 13 April 1997.

The application is dated 2 May 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

__fe____  ___ho___  __lm____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000044324	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001212	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.108	PDR	
2.		
3.		
4.		
5.		
6.