IN THE CASE OF: BOARD DATE: 2 June 2022 DOCKET NUMBER: AR20210014513 APPLICANT REQUESTS: in effect, a physical disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 upon enlistment he passed all medical and physical requirements. At the point of discharge, he was told he didn’t meet the requirements at enlistment but the medical injury occurred during basic training. 3. The applicant underwent a medical examination on 10 August 1971 for the purpose of enlistment. His Standard Form (SF) 93 (Report of Medical History) shows the applicant reported a history of foot trouble. The corresponding SF 88 (Report of Medical Examination) shows he was found qualified for service. 4. The applicant enlisted in the Regular Army on 13 August 1971 for a period of 3 years. 5. A DA Form 3349 (Medical Condition - Physical Profile Record), dated 30 August 1971, shows the applicant was assigned a temporary physical profile of 11T3111, for bilateral flat feet. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 6. The applicant’s physical profile was updated on 16 September 1971, assigning him a permanent profile of 113111 for severe pes planus (flat feet), existed prior to service (EPTS). 7. On 21 September 1971, the applicant underwent a physical examination for the purpose of separation. His SF 93 shows he again reported a history of foot problems, specifically a long history of painful feet (5-6 years). The corresponding SF 88 shows the abnormality of the feet, severe pes planus, and accompanying arthritic changes. 8. A DA Form 8-118 (Medical Board Proceedings), dated 5 October 1971, shows the applicant was found medically unfit for pes planus, severe with arthritic changes. The condition was found to have existed prior to service and was not aggravated by active duty. The Board recommended the applicant be separated under AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9, and AR 40-501 (Standards of Medical Fitness), paragraph 2-10b(5). The applicant indicated he did not desire to continue on active duty. 9. On 12 October 1971, the applicant was advised he had been permanently disqualified for military service. He acknowledged he had been advised of the approved medical board findings and his rights. He elected to make an application for separation. 10. The applicant was honorably discharged on 9 November 1971 under the provisions of AR 635-200, paragraph 5-9, for not meeting medical fitness standards at the time of enlistment. He was credited with 3 months and 27 days of net service. 11. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application, his military service records, and the Department of Veterans Affairs electronic medical record (Joint Legacy Viewer (JLV)). a. The applicant’s 10 August 1971 pre-entrance Report of Medical History shows he had previously sustained a foot fracture, but it was now asymptomatic. The accompanying Report of Medical History shows the applicant had a second opinion obtained on his foot on 13 August 1971, and the provider found him qualified for service. No abnormality or diagnosis is listed. b. The applicant was seen for pes planus (aka “flat feet”) on 26 and 30 August 1971. On 30 August 1971, the applicant was placed on a duty limiting temporary profile for bilateral flat feet. c. The applicant was seen by podiatry on 16 September 1971 for “very symptomatic” flat feet. The podiatrist wrote: Severe pes planus with bulging of inner border, eversion of heels, arthritic tarsal changes on X-ray. Impression: Unfit for induction, EPTS. d. The applicant was placed on a duty limiting permanent physical profile on 15 September 1971. e. The only item the applicant annotated on his pre-separation Report of Medical History was “flat feet pain.” f. The applicant was referred to a medical board which on 6 October 1971 determined the applicant did not meet the induction standards in paragraph 2-10b of AR 40-501, Standards of Medical Fitness (10 August 1971). This paragraph states when pes planus fails medical enlistment standards: 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. g. On 12 October 1971, the applicant noted he had been informed of the board’s findings, agreed with their findings, did not desire to continue on active duty, and requested to be separated from the Army. h. Given no evidence of error or injustice, it is the opinion of the ARBA Medical Advisor that neither a change in separation authority nor a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that there is no evidence of error or injustice in the determination that the applicant’s diagnosis of pes planus warranted his discharge on the basis that he did not meet procurement medical fitness standards. The Board determined the reason and authority for his discharge are not in error or unjust. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-3 states a Soldier being separated for the convenience of the government will be awarded a character of service of honorable or general under honorable conditions. b. Paragraph 5-9 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within 4 months of the member’s initial entrance on active duty or active duty for training under the Reserve Enlistment Program of 1963 which: (1) would have permanently disqualified him/her for entry into the military service had it been detected at that time; and (2) did not disqualify him/her for retention in the military service under the provisions of chapter 3, Army Regulation 40-501 (Standards of Military Service). 3. Army Regulation 635-40 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. 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. 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. 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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014513 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1