PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            29 July 2003      
	DOCKET NUMBER:   AR2003085877

	I certify that hereinafter is recorded the true and complete record of the proceedings 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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O'Shaughnessy		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his physical disability discharge be changed to a disability retirement.

3.  The applicant defers to counsel.  Counsel states that between the applicant's August 1989 physical evaluation board (PEB) physical and his discharge in December 1989, he was diagnosed with insulin-dependent diabetes mellitus.  The PEB considered only the applicant's foot condition.  Had the PEB considered his diabetic condition, his disability rating would have been increased.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 19 July 1978.  He was promoted to pay grade E-5 in military occupational specialty 76C (Equipment Records and Parts Specialist) on 1 October 1983.     He was awarded military occupational specialty 16R (Vulcan Crewmember) on 31 May 1985.

5.  A medical evaluation board (MEB) Narrative Summary, typed 11 October 1989, shows the applicant had a chief complaint of pain in the right foot.  He had bilateral foot surgery in 1979 with continued pain and crooked toes on the right foot.  He had additional foot surgery in April 1989 that corrected the great and third toe deformities but resulted in foreshortening and dorsiflexion of the second toe, right foot.  He was referred to a PEB with a diagnosis of status post multiple bilateral foot surgery with resultant right foot foreshortened second and third toes with extensus deformity of the second toe, right foot.  

6.  On 23 October 1989, a PEB found the applicant unfit for military duty due to bilateral hallux valgus (bunions), post surgery with recurrence of symptoms on the right (10 percent) and post surgical repair of hammertoes of the right foot with residual recurrent deformity (10 percent).  The PEB recommended the applicant be discharged with severance pay with a 20 percent disability rating.  

7.  An MEB Narrative Summary (dictated 18 September 1989, typed                  19 September 1989, and reviewed 24 November 1989) shows the applicant was admitted on 21 November 1989 for further evaluation and treatment of new-onset diabetes mellitus.  After initial treatment, it was felt that he could not be treated with oral hypoglycemic agents only and that insulin would be required.  He was placed on insulin with plans to fine-tune his insulin requirements as an outpatient.

8.  On 4 December 1989, the applicant was discharged for physical disability with severance pay.

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.  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 purposes of his employment on active duty.

10.  Paragraph 4-16 of Army Regulation 635-40 states that a soldier who is rehospitalized while undergoing disability evaluation or awaiting final disposition must be evaluated to decide if his or her condition may change the findings or recommendations of the PEB.  If the soldier's condition may change the findings and recommendations, the medical treatment facility commander will notify the PEB president.  Further adjudicative and review action may be suspended pending resolution.  When the soldier has received optimum hospital improvement for disposition purposes, the hospital commander will prepare an addendum to the original medical board.  The addendum will be forwarded to the PEB with any other pertinent records.

11.  Army Regulation 40-501 governs medical fitness standards for procurement, retention, and separation.  Paragraph 3-11 states that diabetes mellitus when proven to require hypoglycemic drugs in addition to restrictive diet for control is a cause for referral to an MEB.

12.  The Veterans Affairs Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel.  The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.

13.  VASRD code 7913 (diabetes mellitus) gives a 20 percent disability rating when moderate, with moderate insulin or oral hypoglycemic agent dosage, and restricted diet, without impairment of health or vigor or limitation of activity.

14.  Title 10, U. S. 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.

CONCLUSIONS:

1.  The applicant was a combat arms (air defense artillery) noncommissioned officer who was subject to worldwide deployment to combat areas.  

2.  After the applicant had been recommended for disability separation for a foot condition and shortly before he separated, he was diagnosed with and treated for diabetes mellitus.  His diabetic condition was determined to be insulin-dependent.  As this condition could have changed the findings and recommendation of the PEB, the medical treatment facility commander should have notified the PEB president who should then have taken further adjudicative and review action.

3.  As the applicant was a combat arms noncommissioned officer, the Board concludes that his insulin-dependent diabetic condition clearly would have rendered him unfit to perform the duties of his military occupational specialty and this condition should have been considered by the PEB.  

4.  At this point in time, 14 years later, it would not be practical for the applicant to be re-evaluated to determine the extent of his diabetes-related disability at the time of his separation.  Therefore, The Board further concludes that, had the PEB properly considered this condition prior to the applicant's separation, he would have been awarded an additional 20 percent disability rating due to the newly-discovered condition.  That would have increased his disability rating to 40 percent, making him eligible for a disability retirement.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.   showing the applicant's 23 October 1989 PEB was amended on              24 November 1989 to show he was additionally found to be physically unfit for a diagnosis of insulin-dependent diabetes mellitus with a 20 percent disability rating;

     b.  showing the applicant had a combined disability rating of 40 percent;

     c.  revoking the applicant's 4 December 1989 separation for physical disability with severance pay; and

     d.  showing that the applicant was permanently retired by reason of physical disability on 4 December 1989 with a 40 percent disability rating.

BOARD VOTE:  

__mkp___  __wtm___  _teo____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson
		        CHAIRPERSON

INDEX

CASE ID	AR2003085877	
SUFFIX		
RECON		
DATE BOARDED	20030729	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.