IN THE CASE OF: BOARD DATE: 10 August 2023 DOCKET NUMBER: AR20230000517 APPLICANT REQUESTS: correction of his records to show he was discharged due to a service-connected medical disability in lieu of honorably discharged. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United Sates) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 was honorably discharged even though he did not complete training. He is trying to obtain a Department of Veterans Affairs (VA) loan and they want his DD Form 214 to show he was medically discharged in lieu of honorably discharged. 3. On 15 March 1978, the applicant enlisted in the Regular Army for 3 years. 4. Medical Board Proceedings, dated 3 May 1978, show the applicant was found medically unfit due to: a. Flat feet, severe with decided eversion of the feet, marked bulging of the inner borders due to inward rotation of the talus, symptomatic, congenital. Existed prior to service (EPTS). b. Hallux valgus, severe, associated with marked exostosis or bunions bilaterally. EPTS. c. The Board unanimously recommended separation from service under the provisions of Army (AR) 635-200 (Personnel Separations Enlisted Personnel), paragraph 5-7. d. The findings and recommendations were approved on 3 May 1978. e. The applicant acknowledged he had been informed of the findings and recommendations and he agreed with the Board s actions. 5. The applicant's commander recommended his separation from the Army. On the same date, the separation authority approved the recommendation and directed the applicant's discharge from the Army. 6. The applicant's DD Form 214 shows he was discharged on 12 May 1978 under the provisions of AR 635-200, paragraph 5-7, for failure to meet established minimum physical readiness standards. The DD Form 214 also shows he completed 1 month and 28 days of active 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, U.S. 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 VASRD. 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: a. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting, in essence, a referral to the disability evaluation system. He states: For the Honorable Discharge to be changed to medically honorable discharge due to I didn t complete training and I m trying to get a VA loan and they want the DD 214 to say medically honorable discharge. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the Regular Army on 15 March 1978 and was honorably discharged on 12 May 1978 under authority provided by paragraph 5-7 of AR 635-200, Personnel Separations Enlisted Personnel (1 March 1978): Separation of personnel who did not meet procurement medical fitness standards. d. The applicant was referred to a medical evaluation board for symptomatic pes planus (aka flat feet). From the Medical Board Summary: Original Problem: EPTS [Existed Prior to Service] - Flat feet, probably congenital, and bunions and hallux valgus, bilaterally. Chief Complaint: The patient states he is unable to perform any of the requirements of basic training because of painful feet. History f Present Illness: The patient presents himself on sick call with symptomatic flat feet and symptomatic hallux valgus with pronounced bunions on both feet. Physical Examination: Indicates flat feet, severe, and hallux valgus with bunions on both feet. X-Ray Data: Indicates flat feet and hallux valgus with bunions both feet. Diagnosis: 1. Flat feet, severe, with decided eversion of the feet, marked bulging of the inner borders due to inward rotation of the talus, symptomatic, congenital. LD: EPTS [Line of Duty: Existed Prior to Service] 2. Hallux valgus, severe, associated with marked exostosis or bunions bilaterally. LD: EPTS Recommendation: This man is unfit for enlistment according to AR 40-501, chapter 2, Para 2-10b(5) and subpara. b(7), and should be separated from the service under the provisions of AR 635-200, para 5-7. This man is medically cleared for separation e. Paragraph 2-10b(5) of AR 40-501 (27 May 1976) states Flatfoot, pronounced cases, with decided eversion of the foot and marked bulging of the inner border, due to inward rotation of the astragalus {talus}, regardless of the presence or absence of symptoms is a cause for rejection for appointment, enlistment, and induction. f. On 3 May 1978, the board determined his medical condition had existed prior to service, had not been permanently aggravated by his military service, did not meet one or more medical enlistment/induction standards, and was not compatible with continued military service. The applicant agreed with the board s findings on 8 May 1978, initialing the statement I have been informed of the approved findings and recommendations of the board. I do agree with the Board s action. g. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is unwarranted. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence confirms the applicant was properly discharged based on a condition that did not meet enlistment/induction standards. The Board found no evidence that would support a different reason for the applicant s discharge. Based on a preponderance of the evidence, the Board found the reason for the applicant s discharge was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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, U.S. 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 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-7 of the regulation in effect at the time states that members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be separated when medical proceedings, 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 which: a. Would have permanently disqualified the Soldier for entry into the military service had it been detected at that time. b. Does not disqualify the Soldier for retention in the military service under the provisions of chapter 3 of Army Regulation 40-501. 3. 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. 4. 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. 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. 5. 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. a. 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 or 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 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. b. Service members whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. 6. 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. 7. 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. 8. 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. 9. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000517 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1