APPLICANT REQUESTS: In effect, disability separation or retirement. He notes that his enlistment physical examination reflected the extensive scarring on his right leg but his condition was aggravated after entering the service.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
He entered active duty on 28 November 1966 and arrived for basic training at Fort Jackson, South Carolina on 5 December 1966. His pre-induction physical examination, conducted on 18 October 1966, noted a large scars on his right thigh and calf from an automobile accident in 1955. The examining physician indicated the scars were well healed with no deformity or limitation of motion.
On 14 December 1966, less than 10 days after arriving at Fort Jackson, the applicant complained to medical personnel of twisted & painful muscles in his left thigh as well as pain and cramps in his right thigh.
On 30 January 1967 the applicant voluntarily requested separation from the Army for physical reason which existed prior to [his] enlistment in the Army.... He indicated he wanted to be present at the medical board hearing in his case.
The medical board concluded that the applicants extensive scarring on his right leg was the result of a compound fracture sustained in an automobile accident when the applicant was 10 years old and that as a result of the old fracture his range of motion in his right hip was restricted. The board that his condition existed prior to his entry on active duty and was not aggravated by his period of service. The board recommended he be separated from the service for a condition existing prior to service under the provision of Army Regulation 635-200.
The boards findings and recommendations were approved and on 3 February 1967 he was honorably discharged. At the time of his separation he had 2 months and 6 days of active Federal service.
Subsequent to his separation, in 1969, the VA denied service connected disability for his leg condition noting that the Veterans right leg condition existed prior to service and...there was no evidence of record to superimposed disease or trauma sufficient to have caused permanent aggravation over and beyond natural progress of the pre-service condition....
Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
Army Regulation 635-40, paragraph 4-19 (4a), provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated for physical disability without entitlement to benefits.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
3 February 1967, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 3 February 1970.
The application is dated 28 May 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
ARMY | BCMR | CY2010 | 20100013154
The applicant requests correction of his record to show he was medically discharged. On 17 October 1976, an MEB found him medically unfit for service in accordance with Army Regulation 40-501, chapter 3, paragraph 3-36(c)1 and recommended his referral to a PEB. The board recommended his separation from the service without entitlement to disability benefits.
AF | PDBR | CY2009 | PD2009-00497
He was separated with a 10% disability rating determined by the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Naval and Department of Defense regulations. The VA diagnoses included: Focal atrophy of the vastus medialis muscle, minimal; right femur fracture requiring open reduction internal fixation, retrograde insertion of rod; anesthesia of strip below the knee medial aspect from the medial knee to the medial ankle, approximately two inches wide, decreased pin...
ARMY | BCMR | CY2005 | 20050000952C070206
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 October 2005 DOCKET NUMBER: AR20050000952 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Member Ms. Carol A. Kornhoff Member The Board considered the following evidence: Exhibit A - Application for correction of military records. The applicant provides a copy of: a. medical records that show that the...
ARMY | BCMR | CY2005 | 20050000952C070206
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 October 2005 DOCKET NUMBER: AR20050000952 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant provides a copy of: a. medical records that show that the applicant received a below-the- knee amputation of the left leg on 6 February 2001; and b. a DVA Rating Decision, dated 22 January 2004, that...
ARMY | BCMR | CY2012 | 20120020995
A drill instructor stepped on his leg to flatten it and the applicant told him the leg was injured and hurt. e. While in AIT, he had another leg injury when a tire fell on his leg. The evidence of record confirms that on 16 December 1982 an EPSBD found the applicant's condition of left thigh pain existed prior to his entry into military service and recommended he be discharged for failing to meet medical procurement standards.
AF | PDBR | CY2011 | PD2011-00790
Left Thigh Muscle Condition . All members agreed that the thigh muscle injury and open comminuted fracture of the femur with IM rod and nails was an integral part of the CI’s injury and disability that rendered the CI incapable of continued service within his MOS; and, accordingly merits a separate service rating. Painful Thigh Scars Condition .
AF | PDBR | CY2012 | PD2012-00821
Post-Separation) – All Effective Date 20040131 Code Rating Exam Service FPEB – Dated 20030625 Condition Comminuted Right Intertrochanteric and Subtrochanteric Fractures, Status Post ORIF Left Clavicular Fracture 5299-5003 Code CAT III Combined: 20% Rating 20% Condition Residual, Fracture; Femur, Right, Post-Operative with DJD Right Hip, and Right Knee Loss of motion Residual Fracture left Clavicle 5255 20% 20040402 5201-5010 10% 20040402 Combined: 30% ANALYSIS SUMMARY: The Board’s authority...
AF | PDBR | CY2012 | PD2012-00755
Chronic Pain Left Hip Condition. 3 PD1200755 RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: VASRD CODE RATING 5003 COMBINED 10% 10% Chronic Pain Left Hip UNFITTING CONDITION The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120605, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment...
AF | PDBR | CY2012 | PD2012 00718
The InformalPEB (IPEB) adjudicated the left hip pain as unfitting, rated 10%, with cited application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).The remaining (right) leg pain condition was determined to be CategoryII (conditions that contribute to the unfitting condition).The CI made no appeals and was medically separatedwith a 10% disability rating. Under any appropriate VASRD code, the disability evaluation would result in a 10% rating as granted by the PEB. ...
AF | PDBR | CY2013 | PD-2013-01204
The record contains well documented evidence of significant left thigh muscle injury with an open, comminuted femur fracture that required ORIF and subsequent bone grafting. RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: DoD Physical Disability Board of Review