MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            5 October 2000                  
	DOCKET NUMBER:   AR1999033155

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. Elzey J. Arledge 		Member	
	Mr. Jaime Perez 		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, the applicant requests physical disability retirement or discharge.  

APPLICANT STATES:  That he was honorably discharged because of his medical disability; however, with no benefits or with a service connected disability.  His commander and his first sergeant did not allow him to remain in the Army for four more months.  He was denied a physical examination.  He wants to be seen by the VA for the condition he sustained while in the Army.

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

The applicant enlisted in the Army for three years on 1 February 1996.  His enlistment physical of 11 January 1996 shows that the applicant had moderate pes planus (flat feet), asymptomatic.

He completed training and in June 1996 was assigned to Fort Carson, Colorado as an infantryman.  His personnel qualification record shows that he was AWOL from 25 March 1997 to 27 March 1997.

A podiatry consultation of 13 May 1997 indicates that the applicant had unresolved foot pain since basic training, and been essentially on profile his entire year in the Army.  That consultation also indicates that the applicant worked in a stock room of a grocery store standing and walking on concrete floors; and after five hours he would have to put his feet up.  He began having problems during basic training after his second road march.  After he reported to Fort Carson in June 1996, he had on and off profiles.  The physical examination indicated, among other findings, that he had marked pes planus, and that even with non-weight bearing examination, there was evidence of medial and medial plantar bulge with hyperkeratosis at the plantar medical border of the foot.  The examining physician stated that the applicant was unable to participate in any of the normal infantry activities, to participate in road marches, or to finish company runs.  He stated that the applicant was unable to fulfill his enlistment contract, and recommended that he be referred to the medical evaluation board clinic.

A 20 May 1997 medical evaluation board (MEB) narrative summary shows that the applicant had been referred because his feet had been painful since basic training.  That summary indicates that the applicant had at least nine entries in his health record concerning foot and ankle pain, with the first entry being in March 1996.  The summary noted that the applicant’s entry physical on             11 January 1996 showed that the applicant had moderate pes planus with restricted hind foot motion, and that the prognosis for symptom free duty would be guarded.  

The MEB Narrative Summary indicates that the applicant’s condition was diagnosed as bilateral pes planus, symptomatic, more than moderate, with pronation on weight bearing which prevented the wearing of military foot gear (Army Regulation 40-501, chapter 3).  His condition existed prior to service (EPTS).  Also, his condition was diagnosed as insufficient ankle motion with less than minimal acceptable range of motion to plus ten degrees of dorsiflexion at each ankle.  EPTS.  The MEB stated that both conditions were symptomatic since February of 1996 and both diagnoses were not service aggravated.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  The applicant agreed with the board’s findings and recommendation.

On 19 June 1997 a PEB determined that the applicant’s condition of pes planus (VA Code 5276) made him unfit to perform the duties required of an infantryman.  It also determined, however, that his condition of insufficient ankle motion was found to be not unfitting and therefore not ratable.  The board determined that his condition of pes planus was found to be not service incurred or permanently aggravated, and that his impairment existed prior to active duty (EPTS), that his disability increased only to the extent of its accepted normal and natural progression, therefore, there was no permanent service aggravation.  He was not eligible for disability compensation and was separated without disability benefits. The board recommended that the applicant be separated from the Army without disability benefits.  The applicant concurred in the findings and recommendations of the board and waived a formal hearing of his case. 

He was discharged on 23 August 1997 for a disability that existed prior to his service, under the provisions of Army Regulation 635-40, paragraph 4-24b (4).  He had 1 year, 6 months, and 20 days of service.     

Army Regulation 40-501, Chapter 3, gives the various medical conditions and physical defects which may render a soldier unfit for further military service.  Soldiers with conditions listed in that chapter who do not meet the required medical standards will be evaluated by a MEBD and will be referred to a PEB.  A soldier whose condition is symptomatic pes planus, which is more than moderate, with pronation on weight bearing which prevents the wearing of military footwear, is cause for referral to a MEB.

Chapter 2 of the above regulation provides medical fitness standards for enlistment in the Army.  Pes planus, pronounced cases, with decided eversion of the foot and marked bulging of the inner boarder, due to rotation of the talus, regardless of the presence or absence of symptoms, and pes planus, tarsal condition, are causes for rejection for enlistment in the Army.

Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating.  Paragraph 3-1e states in pertinent part, that prior service medical conditions are to be considered according to certain standards and limitations, one of which is that, despite any other provisions of the regulation, after a soldier has been enlisted, he will not be declared physically unfit for military service because of disabilities known to exist at the time of the soldier’s acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the soldier’s performance of effective military service.  

That paragraph also states that when a soldier enters the military with a physical defect, and the condition represents a decided medical risk which would probably prejudice the best interest of the Government were the soldier to remain in military service, separation without benefits may be appropriate, if initiated within 6 months of initial entry on active duty.   

Certain presumptions apply to physical disability evaluation, one of which is that sudden developments occurring while the solider is in military service will be regarded as service-incurred or service-aggravated.  That presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased disability occurred during active duty or that such condition was the result of “natural progression” of preexisting injuries or diseases.  Only specific findings of “natural progression” of the preexisting injury or disease, based upon well-established medical principles are enough to overcome the presumption of military service aggravation.    

Army Regulation 635-40 also provides 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 military service.  

Army Regulation 635-40 provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

The PEB may decide that a soldier’s physical defect existed prior to service. If so, the board must further consider whether military service aggravated the unfitting defect.  If the soldier’s military service makes the condition worse or hastens the natural progression of the condition beyond the normal or anticipated rate had he not been exposed to such service, a finding of aggravation must be considered.  When the PEB decides that a condition has been aggravated by service, the PEB will consider the degree of disability that is in excess of the degree existing at the time of entrance into service. 

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.  The medical evidence clearly shows that the applicant’s condition existed prior to his entry in the Army.  A PEB determined that his disability had increased only to the extent of its accepted normal and natural progression, and that there was no permanent service aggravation.  That board recommended that the applicant be separated without disability benefits.  The applicant concurred. 

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 the aforementioned requirement.

4.  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

___eja___  ___jp____  ___slp__  DENY APPLICATION

		    Karl F. Schneider
		    Deputy Assistant Secretary
    (Army Review Boards)

INDEX

CASE ID	AR1999033155	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.