IN THE CASE OF: 

		BOARD DATE:  4 February 2022

		DOCKET NUMBER: AR20210011807


APPLICANT REQUESTS: a medical retirement in lieu of his 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, section 1552(b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 states he would like to have his discharge changed from medical to 
medically retired. He required additional surgeries following his discharge on both feet.  
He has had a total of six surgeries, including the original surgery. The original surgery is 
documented in his medical records.

3.  The applicant did not provide supporting documentation.

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 19 March 1999.

	b.  A Standard Form (SF) 88 (Report of Medical Examination) shows the applicant 
received a medical examination on 19 May 1997 for the purpose of enlistment and a 
reexamination on 12 February 1999. The clinical evaluation was normal and Block 77 
(Examinee) indicated the applicant was qualified for service.

	c.  His DA Form 2-1 (Personnel Qualification Record) shows the applicant served in 
Korea from 29 November 1999 to 28 November 2000.

	d.  Two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) show the 
applicant passed all diagnostic and record APFT with the last two tests showing the 
applicant was on profile:
*	23 February 2000
*	4 October 2000

   e.  A DA Form 3349, dated 15 January 2002, shows the applicant was given a 
permanent physical profile rating of “3” for lower extremities due to heel spurs and 
calcifications in Achilles tendon, both feet  Block 10 (Other) further noted the applicant 
was authorized soft shoes with his uniform and a medical evaluation board (MEB) would 
be initiated.  

	f.  His records contain a DD Form 2807-1 (Report of Medical History), dated 10 
January 2002, completed by the applicant for the purpose of a medical board. The 
applicant marked “No” to most questions regarding challenges with his health with the 
exception of marking “yes” to trouble with his feet, knee or foot surgery, and plate(s), 
screw(s), rod(s) or pins in bones. He also marked “yes” to generally in good health.  
Additionally noted in Block 29 (Explanation of “Yes” Answers) he identified pain in his 
heels and feet, prior surgery, inserts for his shoes, anchors in his right heel, and 
heartburn with certain foods.

   g.  A DD Form 2808 (Report of Medical Examination), dated 15 January 2002, 
shows the applicant underwent an examination for the purpose of a medical board. The 
applicant’s clinical evaluation was marked abnormal for his feet. Block 74a 
(Examinee/Applicant) was marked qualified for MEB.

	h.  A memorandum from the applicant’s commander, dated 15 January 2002, 
outlined the applicant’s physical condition. The commander stated the applicant was 
physically incapable of performing his duties due to his chronic foot problems. Although 
the applicant was a good Soldier, his physical condition created a burden for others in 
his section and adversely impacted readiness. The command was considered a rapid 
response contingency and the applicant was non-deployable.

   i.  A MEB Narrative Summary (NARSUM), dated 19 February 2002, indicated a 
physical examination was performed on 6 February 2002 due to the applicant’s pain in 
the posterior aspect of both heels. The applicant’s condition did not meet retention 
standards as designated in Army Regulation 40-501. Additionally, his ankle-joint 
dorsiflexion range of motion on both feet did not meet retention standards. The 
applicant was unable to wear boots secondary to the pain and had difficulty in field duty 
with uneven terrain as the condition worsened. His diagnoses included:
   
*	heel spur syndrome
*	Achilles tendinitis
*	Achilles tendon contracture

   j.  A DA Form 3947 (MEB Proceedings), shows an MEB convened on 14 February 
2002, to consider the conditions referenced in the NARSUM. The applicant was referred 
to a Physical Evaluation Board (PEB) and on 20 February 2002, he concurred with the 
MEB findings and recommendation.  

	k.  A DA Form 199 (Physical Evaluation Board Proceedings) showed on 27 February 
2002, a PEB convened and found the applicant physically unfit. The PEB recommended 
a rating of 10% and the applicant’s disposition be separation with severance pay, if 
otherwise qualified. The disabling condition was listed as chronic bilateral heel pain, due 
to heel spur syndrome, Achilles tendinitis with contracture (VASRD Codes 5099 5003).  
On 4 March 2002, the applicant did not concur, demanded a formal hearing, and 
requested appointed to counsel to represent him.

	l.  Progress Notes, dated 6 March 2002, showed the applicant was concerned that 
the MED did not consider ankle joint range of motion in rating. The ranges of motions 
were remeasured and the physician annotated his findings. 

	m.  A memorandum, dated 7 March 2002, informed the applicant the PEB had 
reviewed the additional medical information and after careful consideration, the PEB 
found that no change to the original findings was warranted.

	n.   A DA Form 199 showed on 27 March 2002, a PEB convened to reconsider the 
applicant’s conditions and found the applicant physically unfit. The PEB recommended 
a rating of 20% and the applicant’s disposition be separation with severance pay, if 
otherwise qualified. The disabling condition was listed as bilateral heel spur syndrome 
with Achilles tendinitis with contracture, range of motion 40 degrees right, 41 degrees 
left (VASRD Codes 5271). The case was informally reconsidered based on Addendum 
6 March 2002. On 29 March 2002, the applicant did concurred with the findings and 
waived a formal hearing.

   o.  Orders 105-0035, dated 15 April 2002, discharged the applicant from active duty 
with a 20% disability rating effective 3 June 2002.

   p.  He was honorably discharged from active duty on 3 June 2002. His DD Form 214 
shows he completed 3 years, 2 months, and 5 days of active service. He was assigned 
separation code “JFL” and the narrative reason for his separation listed as “Disability, 
Severance Pay.”

5.  By regulation (AR 40-501), once a determination of physical unfitness is made, 
disabilities are rated using the VA schedule of disability rating

6.  By regulation (AR 635-40), the Army disability system 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 disability compensation is not an 
entitlement acquired by reason of service-incurred illness or injury; rather, it is provided 
to Soldiers whose service is interrupted and who can no longer continue to reasonably 
perform because of a physical disability incurred or aggravated in military service.

7.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

8.  Title 38, United States Code, Sections 1110 and 1131, permit the VA to award 
compensation for disabilities which were incurred in or aggravated by active military 
service. However, an award of a VA rating does not establish an error or injustice on the 
part of the Army.  

9.  Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating 
disabilities. The VA awards disability ratings to Veterans for service-connected 
conditions, including those conditions detected after discharge. As a result, the VA, 
operating under different policies, may award a disability rating where the Army did not 
find the member to be unfit to perform his/her duties. Unlike the Army, the VA can 
evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability 
based upon that agency's examinations and findings.

10.   MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case.  Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations: 

    a.  The applicant is again applying to the ABCMR requesting an increase in his 
military disability rating with a subsequent change in his disability discharge disposition 
from separated with severance pay to permanent retirement for physical disability.  He 
states:

“Upon my discharge, I still required further surgeries on both my feet.  In total 
since my discharge, I have need 6 more surgeries not to include the original.”

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 shows he entered the regular Army 
on 19 March 2002 and was discharged with $9,597.60 of disability severance pay on 3 
June 2002 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation 
for Retention, Retirement, or Separation (1 September 1990).  

    c.  The applicant was placed on a duty limiting permanent profile for “Heel spurs / 
Calcification in the Achilles tendons, both feet” on 15 January 2002.  From the medical 
evaluation board (MEB) 2002 narrative summary dated 2 February:

(1) “This 24-year-old active duty E-4 complains of pain on the posterior aspect of 
both heels. This discomfort has been ongoing since basic training AIT … This 
pain had been worsening since basic training AIT.  The pain has been worsened 
by wearing of boots, running, jumping, ruck marching, and walking on uneven 
terrain.  Non-surgically, many modalities have been attempted to treat this 
discomfort ... On July 20, 2001, the patient had a retrocalcaneal exostectomy.  
The patient never had significant relief of the discomfort even after surgery ...”

(2) The examination reveals continued tenderness to palpation on the posterior 
aspect of the right heel at the insertion of the Achilles tendon ...  There is an 
increased tenderness especially around and over the scar on the posterior 
aspect of the heel.  He has decreased ankle joint; dorsiflexion range of motion 
with the knee in a flexed position is 5 degrees for thee left foot and 0 degrees for 
the right foot.  With the knee flexed, the ankle joint dorsiflexion range of motion 
should be approximately 15 degrees.

(3) Present Condition and Current Functional Status: The pain in the soldier's heel is 
constant and interferes with a lot of his daily activities.  In relation to his MOS, it 
does interfere with his ability to perform his duty especially in the field.”  

    d.  Though both the applicant’s heels were reported to have been subjectively 
symptomatic, it appears the right heel was the reason for the MEB as it was the only 
one examined for the MEB and the provider uses the singular “soldier’s heel” in 
Functional Status paragraph.  

    e.  A medical evaluation board (MEB) determined the conditions of “Heel spur 
syndrome”, Achilles tendonitis”, and “Achilles Tendon contracture” failed the medical 
retention standard in in chapter 3 AR 40-501, Standards of Medical Fitness.  On 20 
February 2002, the applicant concurred with the board’s findings and recommendation, 
and the case was then forwarded to a physical evaluation board (PEB) for adjudication.

    f.  On 27 February 2002, the applicant’s informal (PEB) determined that his “Chronic 
bilateral heel pain due to heel spur syndrome, Achilles tendonitis with contracture” was 
his sole unfitting condition for continued service.  Using the VA Schedule for Rating 
Disabilities (VASRD) diagnostic code 5003 - Arthritis, degenerative -, they rated the 
condition at 10% and recommended that he be separated with severance pay.  On 4 
March 2002, after being counseled on the PEB’s findings and recommendation by his 
PEB liaison officer, the applicant non-concurred with the PEB and requested a formal 
hearing.  

    g.  The PEB obtained a 6 March 2002 follow-up note from the applicant’s treating 
podiatrist:

(1) “Pt {patient} returns to clinic for discussion about MEB.  Concerned that MEB did 
not consider ankle joint range of motion in rating.

(2) Ranges of motion were re-measured today.  Pt has reduced right ankle joint
dorsiflexion range of motion with knee extended (0 degrees) and only 5 degrees
with knee flexed. This represents gastrocnemius equinus.  The left foot presents 
with 3 degrees of dorsiflexion range of motion with knee extended and
8 degrees with knee flexed.

(3) Pt has 33 degrees left and 35 degrees right plantarflexion range of motion of
the ankles.  Posterior right heel remains tender to touch.

(4) Pt ambulates with a limp - favoring the right foot.  Early heel lift bilaterally with 
gait.

(5) Impression - Gastrocnemius equinus {Achilles tendon contracture) bilaterally, 
pain right heel {postop 20 July 2001 - retrocalcaneal exostectomy).”

    h.  This evaluation again notes that only the right heel was significantly symptomatic.  
Using this clinical evaluation, the PEB responded to the applicant in a 7 March 2002 
memorandum:

The Physical Evaluation Board (PEB) has reviewed the additional medical 
information from WACH Podiatry Clinic dated 6 March 2002.  After careful 
consideration, the PEB has found that no change to the original findings is
warranted.  The letter contained no new objective medical or performance 
evidence that would result in a change to your 27 February 2002 PEB findings 
and recommendations.

    i.  When the formal PEB convened on 27 March 2002, they increased his disability 
rating to 20% using the more appropriate VASRD diagnostic code 5271 - Ankle, limited 
motion: 

5271 Ankle, limited motion of:

Marked .....................20
Moderate ..................10

    j.  Now with the maximum 20% rating, they again recommended the applicant be 
separated with severance pay.  On 29 March 2002, after being counseled on the PEB’s 
findings and recommendation by his PEB liaison officer, the applicant concurred with 
the PEB.

    k.  Review of his records in JLV shows he has been awarded multiple VA service 
connected disability ratings, several of which are related to his feet and ankles.  
However, the DES has neither the role nor the authority to compensate service 
members for anticipated future severity or potential complications of conditions which 
were incurred or permanently aggravated during their military service.  That role and 
authority is granted by Congress to the Department of Veterans Affairs and executed 
under a different set of laws.

    l.  It is the opinion of the ARBA Medical Advisor that that neither an increase in his 
military disability rating nor a referral of his case to the DES is warranted.

BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, evidence 
in the records, and regulatory guidance. The Board considered the applicant's 
statement, the medical records, and the review and conclusions of the medical 
reviewing official. Based upon a preponderance of the evidence, the Board concurred 
with the medical reviewer’s finding of insufficient evidence the contested medical 
conditions require an increase to his disability percentage nor referral for DES 
consideration of a medical 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.

REFERENCES:

1.  Title 10, United States 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. This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the 3-year statute of limitations if the ABCMR determines it 
would be in the interest of justice to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB.  The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition.  Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service.  Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness.  In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

3.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) establishes the Army 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. Only the unfitting conditions or defects and those which contribute to unfitness 
will be considered in arriving at the rated degree of incapacity warranting retirement or 
separation for disability.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by 
reason of service-incurred illness or injury; rather, it is provided to Soldiers whose 
service is interrupted and who can no longer continue to reasonably perform because of 
a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness 
standards for enlistment, induction, appointment (including officer procurement 
programs), retention, and separation (including retirement). The Department of 
Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the 
VA as part of the process of adjudicating disability claims. It is a guide for evaluating the 
severity of disabilities resulting from all types of diseases and injuries encountered as a 
result of or incident to military service. This degree of severity is expressed as a 
percentage rating which determines the amount of monthly compensation.

5.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

6. Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability 
resulting from personal injury suffered or disease contracted in line of duty, or for 
aggravation of a preexisting injury suffered or disease contracted in line of duty, in the 
active military, naval, or air service, during a period of war, the United States will pay to 
any veteran thus disabled and who was discharged or released under conditions other 
than dishonorable from the period of service in which said injury or disease was 
incurred, or preexisting injury or disease was aggravated, compensation as provided in 
this subchapter, but no compensation shall be paid if the disability is a result of the 
veteran's own willful misconduct or abuse of alcohol or drugs.

7.  Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic 
Entitlement) states for disability resulting from personal injury suffered or disease 
contracted in line of duty, or for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in the active military, naval, or air service, during other than a 
period of war, the United States will pay to any veteran thus disabled and who was 
discharged or released under conditions other than dishonorable from the period of 
service in which said injury or disease was incurred, or preexisting injury or disease was 
aggravated, compensation as provided in this subchapter, but no compensation shall be 
paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol 
or drugs.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210011807


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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