ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160015974 APPLICANT REQUESTS: reconsideration to have his Narrative Reason for Separation change from Disability, Severance Pay to Medical Retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 1506 (Statement of Service) * Veterans Affairs (VA) Summary of Benefits * VA Award Letter * VA Medical Records * Letter from X X , DPM * Colorado Springs Surgery Center Report * Congressional correspondence FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130016515 on 2 July 2014. 2. The applicant states, that in 2005 he had a promising career as a Platoon Sergeant and was selected for promotion at the time of his medical discharge. He was discharged due to a problem he developed with his feet that prevented him from running, walking, and standing for long periods of time. Medical personnel at Fort Sill informed him that there was nothing they could do to correct the problem and recommended separation. He was medically discharged with separation pay and awarded 10% for his foot condition, which was eventually increased to 20% by the Army. At the time of separation, he had been in and out of service on three separate occasions with some National Guard time in between. Years later, he reviewed his discharge documents and felt that his time was not accurately calculated when he was discharged. He requested a Statement of Service (DA Form 1506) be completed, and at the time of his medical discharge, he had 19 years 8 months and 24 days of total creditable service years. He is requesting that his medical discharge be changed to a medical retirement due to the number of years of creditable service, his foot condition is 1. currently rated at 30% by the VA, and he has an 80% disability rating for service connected disabilities. He also states, he was recently made aware of the Board and its power to make these types of changes. 3. The applicant provides: a. DA Form 1506 (Statement of Service – for Computation of Length of Service for Pay Purposes), dated 15 May 2013, which states the applicant’s computation of time for pay purposes of his time in service. Form is not completely legible. b. VA Summary of Benefits, dated 27 September 2016, which states the applicant has a 80% service connected disability rating, effective 1 July 2015, and he receives $1,839.48 a month. c. VA Award Letter, dated 29 July 2005, which states the applicant received $210.00 an month as a monthly entitlement, which was granted on 1 June 2005. d. VA Medical Records, copied from the applicant’s C-File, which shows that the applicant received a rating of 90% for bilateral pes planus and plantar fasciitis (also claimed as Morton's neuroma), post-traumatic stress disorder (PTSD), tinnitus, and left knee degenerative joint disease with muscle atrophy. e. Letter from X , DPM, dated 17 December 2007, which states clinical and radiographic findings suggested the applicant had a tailor's bunion deformity with arthritic changes to the 4th metatarsophalangeal joint. The applicant underwent surgical intervention on 2 November 2007, consisting of complete resection of the 4th metatarsal head and 5th metatarsal osteotomy to correct the tailor's bunion deformity. The applicant has made improvements with his symptoms since the surgery f. Colorado Springs Surgery Center Report, dated 10 October 2012, which states the applicant’s issues were joint pain in the fourth metatarsophalangeal joint, with a possibility of gouty arthritis based on appearance of bone, and tailor's bunion deformity of the right foot. It also states that he was to undergo a procedure for complete osteotomy/removal of the 4th metatarsophalangeal joint of the right foot, and osteotomy of the 5th metatarsal with bunionectomy right. 4. A review of the applicant’s service record shows: a. He enlisted on 17 February 1982 in to the Regular Army (RA). b. He was honorably released from the active duty on 15 February 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months and 29 days of active service. a. c. He reenlisted on 3 December 1986 in to the RA. He was honorably discharged from the active duty on 11 June 1992. His DD Form 214 shows he completed 5 years, 6 months and 9 days of active service. d. He reenlisted on 26 December 1995 in to the RA. He was discharged on 6 July 1999, and immediately reenlisted on 7 July 1999 in to the RA. e. He reenlisted on 6 August 2002 in to the RA. He served in Korea from 18 December 2001 to 18 December 2002. f. On 11 December 2004, his immediate commander recommended that he be considered unfit for reasonable performance of his duties in his primary military occupational specialty (MOS) due to his metatarsalgia problems. g. He had a physician directed medical evaluation board (MEB) conducted on 3 January 2005 for 7295 metatarsalgia, bilateral that was incurred during his time in service. He agreed with the board findings and recommendations. The MEB referred him to a physical evaluation board (PEB). h. On 19 January 2005, the PEB convened and found he suffered from bilateral metatarsalgia, and that the he is physically unfit and recommended a combined rating of 10%. The PEB recommended the applicant be separated with severance pay, if otherwise qualified. He concurred with the findings and waived a formal hearing of the case. i. On 5 December 2005, he submitted a request for continuance on active duty, which the president of the PEB recommended denial to the Commander of the United States Army Physical Disability Agency (USAPDA), stating that the findings of unfit was approved. j. He was honorably released from active duty on 2 May 2005. His DD Form 214 shows he was honorably released from active duty under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) (Separation for physical disability with severance pay). His narrative reason for separation is disability, severance pay. He completed 15 years, 10 months and 15 days of active duty service, and 5 years, 4 months, and 19 days of inactive service. 5. The applicant applied to the ABCMR on 1 September 2013 to be reinstated to active duty or to have his discharge changed to a medical retirement. His request was denied in full, and the Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. 6. On 27 February 2019, the Army Review Boards Agency (ARBA) Senior Medical Advisor reviewed the applicant's case and rendered an advisory opinion and opined: 1. a. The applicant’s medical conditions were duly considered during medical separation processing. b. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character, reason, rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness for the discharge in this case. c. The applicant separated after disability evaluation system (DES) processing. He had clearly reached a medical retention determination point for his foot pain. Contributing factors included bilateral pes planus. The foot pain developed insidiously, despite a no-running profile since June 2000 for his left knee condition. The applicant’s 3.5-year history of foot pain (since at least August 2001) was evaluated and treated (orthotics, injection therapy, shoes, no running profile) by both network civilian and military podiatrists. The applicant’s foot x-rays were unremarkable. There was no clear indication for elective foot surgery in 2004-2005. Post-separation, podiatric evaluation in late 2007 included abnormal x-ray findings (degenerative changes, findings consistent with Tailor’s bunionette, etc), a clear change from prior. Despite the surgery and reported improvement afterwards, the applicant’s foot condition continued to progress with VA rated foot disability increasing from 10% in 2005 to 50% in 2015. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is no cause to recommend a change in the PEB fitness determination for the contended condition(s) and so no additional disability rating(s) recommended. This applicant’s current medical advisory opinion is congruent with the previous Department of Defense Physical Disability Board of Review (DoD PDBR) (AR20150013345 (PD201301956)) finding that the PEB determination and rating were accurate. Medical disability discharge versus medical retirement is not based on years of service, but on degree of disability for unfitting compensable conditions. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the Department of Veterans Affairs, operating under a different set of laws. 7. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 8. By regulation AR 635-40, based upon the final decision of USAPDA or APDAB, USA HRC will issue retirement orders or other disposition instructions for separation for physical disability with severance pay. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that no evidence of a medical disability or condition that would support a change to the narrative reason for the separation and the lack of a rebuttal submitted by the applicant for that finding, the Board concluded that there was insufficient evidence to warrant a change to the narrative reason for 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. 6/11/2019 X CHAIRPERSON Signed by 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. REFERENCES: 1. Army Regulation 635-40 (Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation), 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 or her office, grade, rank, or rating. The regulation states an MEB is 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 qualification for retention based on the criteria in Army Regulation 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. 2. Army Regulation 40-501 (Standards of Fitness), chapter 3, provides for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Members with conditions as severe, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing. 3. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA), the U.S. Army Reserve (USAR), and the Army National Guard (ARNG). It provides policies and procedures to process applicants for enlistment in the RA Delayed Entry Program (DEP) and on delayed status, and the USAR Delayed Training Program (DTP). Table 3-1 included a list of the Regular Army RE codes. An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met.