ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 March 2019

	DOCKET NUMBER:  AR20160015411


APPLICANT REQUESTS: in effect, his physical disability-existed prior to service (EPTS)-Medical board discharge be changed to a medical discharge.


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant’s enlistment examination, 28 February 1979, does not indicate the applicant had “flat feet.”

3.  On his Report of Medical History the applicant checked “NO” for foot trouble, but the entry is circled.

4.  On 14 August 1979, the applicant enlisted in the Regular Army for 3 years.

5.  On 29 November 1979, a Narrative Summary for a Medical Evaluation Board (MEB) stated the applicant’s chief complaint was: "painful area around the mid-tarsal joint and subtalar joints."

   a.  The applicant indicated he had the problem ever since he entered the service and it didn’t bother him prior to entering the Army.

   b.   Examination revealed the applicant with decreased motion at the mid-tarsal joint, almost zero bilaterally and decreasing subtalar joint motion.  He had a severe forefoot varus with a flexible flat feet.

   c.  The applicant was diagnosed with flexible flat feet, with severe pronation and with a large medial bulge and eversion of the heel, bilaterally as well as a possible coalition of the mid-tarsal joint area.
   
   d.  The applicant was found unfit for enlistment and/or retention in the service in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 2-10b(5).  He was recommended for separation from the service under the provisions of chapter 5 of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

6.  AR 635-40, chapter 5 provided for the expeditious discharge of enlisted personnel who were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.  

7.  On 29 November 1979, an MEB found the applicant medically unfit for severe flat feet.  The MEB determined the condition existed prior to service (EPTS) and was not aggravated by active duty.  The MEB recommended the applicant be separated under the provisions of chapter 5, AR 635-40.  The applicant indicated he had been informed of the approved findings and recommendations of the board and that he did not desire to continue on active duty.

8.  On 13 December 1979, the applicant completed a DA Form 2496 (Disposition Form) on which he requested discharge for physical disability.

	a.  He was informed that an MEB found he was not qualified for retention in the military service by reason of physical disability which was found to have EPTS and was neither incident to nor aggravated by his military service.

	b.  He understood he was entitled to have his case considered by the adjudicative system established by the Secretary of the  Army for processing disability separations.  The applicant elected not to exercise this right.

	c.  The applicant understood that entitlement to veterans benefits would be determined by the Department of Veterans Affairs (VA).

	d.  He understood if his application was approved, he would be separated by reason of physical disability EPTS.

9.  This complied with paragraph 5-3g of AR 635-40 requiring the applicant to be assisted in completing a DA Form 2496 to apply for expeditious discharge.

10.  On 7 January 1980, the applicant’s commander recommended he be discharged in accordance with chapter 5, AR 635-40.

11.  On 15 January 1980, the applicant completed a VA Form 21-526e (Veterans Application for Compensation or Pension at Separation from Service) for his leg and feet.  This complied with paragraph 5-5 of AR 635-40.

12.  On 10 January 1980 the appropriate authority approved the applicant’s request for discharge.

13.  On 15 January 1980, the applicant was discharged by reason of physical disability-EPTS-Medical board.  He completed 5 months and 2 days of active service that was characterized as honorable.

14.  On 1 October 2018, an advisory was received from the Army Review Boards Agency (ARBA) senior medical advisor.  The advisory found the available documentation showed the applicant did not meet medical accession standards for sever pes planus (flexible flat feet).  The applicant was separated for an EPTS severe pes planus (flexible flat foot) condition with bilateral foot pain since entry onto active military service.  This underlying condition did not meet procurement medical fitness standards and was not aggravated by military service (pain secondary to natural progression).  A copy of the complete medical advisory was provided to the Board for their review and consideration.

15.  On 4 October 2018, the applicant was provided a copy of the above advisory and given the opportunity to submit rebuttal/addition statements.  The applicant did not respond.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered.  The Board agreed the discharged characterization he received was warranted.  There was no error nor injustice with the medical diagnosis made at his time of separation.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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.

	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  AR 40-501, Chapter 2 (Procurement Medical Fitness Standards), in effect at the time, set forth the medical conditions and physical defects which were causes for rejection for military service in peacetime.  Paragraph 2-10-b(5) listed "flatfoot, pronounced cases, with decided eversion of the foot and marked bulging of the inner border, due to inward rotation of the astragalus, regardless of the presence or absence of symptoms." 

3.  AR 635-40, in effect at the time, established the Army Physical Disability Evaluation System in accordance with the provisions of chapter 61, Title 10, USC and Department of Defense Directive 1332.18, subject: Uniform Interpretation of Laws Relating to Separation from the Military Service by Reason of Physical Disability.  

   a.  Paragraph 5-1 provided for the expeditious discharge of enlisted personnel who, in accordance with chapter 3, AR 40-501, were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

   b.  Paragraph 5-3d stated that upon receipt of MEB proceedings recommending separation of a member because of physical disability which was incurred or aggravated when the member was not entitled to basic pay, the commander of the military treatment facility upon approval of medical board proceedings referred the case to his Physical Evaluation Board Liaison Officer (PEBLO) for explanation to the member, advise him or her of their rights, and the offer of an opportunity for expeditious discharge providing that the member agreed with the findings of the medical board and that the member was otherwise eligible for discharge.

   c.  Paragraph 5-3e stated the PEBLO advised a member eligible for consideration under this chapter of the following:

     (1)  That the member may not be separated under this chapter if the member did not agree.  If the member did not agree, the case was referred to a Physical Evaluation Board (PEB) for determination of whether the member was fit or unfit because of physical disability and, if the member was unfit, whether the member was entitled to benefits administered by the Army.

      (2)  An evaluation of the case by an MEB found that the member was not medically qualified for retention on active duty, and that the member's condition was considered to be the result of a disability which had no connection with the member's military service.

      (3)  If the member agreed with the findings of the medical board that the physical disability existed prior to service and was not aggravated thereby, the member could apply for expeditious discharge under the provisions of this chapter.  

      (4)  The member's application and the approved MEB report was forwarded to the commander having separation authority who, if he approved the action, ordered prompt separation.

      (5) Any member of the Army discharged under the provisions of this chapter could not be considered for any disability benefits administered by the Army under chapter 61, Title 10, U.S. Code.  They could, however, apply for compensation, pension, or other benefits administered by the VA.   Entitlement to these benefits was determined by the VA.

   d.  Paragraph 5-3g stated that after the member was informed of the rights and conditions enumerated above and indicated a desire to apply for expeditious discharge, they were afforded necessary assistance in preparing an application on DA Form 2496 (Disposition Form)

   e.  Paragraph 5-5 stated members to be discharged were counseled as prescribed in regulations, and complete a Veterans Application for Compensation or Pension at Separation from Service (VA Form 21-526e) or sign a statement in lieu thereof.
   
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015411
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