APPLICANT REQUESTS: Correction of his records to reflect his disabilities were caused by an instrumentality of war and incurred in line of duty during a period of war.... He states, in effect, that he should have appeared before a Physical Evaluation Board (PEB) in 1967 when he first received his permanent physical profile. He believes because his PEB did not take place until more than 7 years after his initial profile the board over looked the connection between [his] disability and combat against an enemy of the United States. He states while in Vietnam he performed regular combat missions in areas where the defoliant, agent orange was used and that many times the contaminated leaves burned creating an additional irritant and were hazardous to him when he inhaled the smoke. He notes he was evacuated from Vietnam because of asthma and in May 1967 was issued a permanent profile which was the direct result of hazards and stress of combat against an enemy of the United States and is an instrumentality of war. He states, in spite of his permanent profile he was illegally assigned to Vietnam for a second tour in August 1969 only to be evacuated again two months later. The applicant seeks this correction in order to be protected in the event of a government reduction in force.
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:
Entered active duty on 13 June 1955 and served in an infantry specialty throughout his military service. The applicant was assigned to Vietnam between December 1966 and April 1967 and again from August through November 1969. His medical records indicate a history of asthma since childhood and was medically evacuated from Vietnam in 1967 and 1969 because of his asthmatic condition. He was issued a permanent profile for bronchial asthma in May 1967 after being evacuated from Vietnam. Notwithstanding his profile, and recommendations that he be reclassified out of his combat specialty, the applicant continued to function successfully as an infantryman. He was administered medication in an effort to control his asthma.
By December 1974 the applicants medical conditions had deteriorated to the point that he appeared before a Medical Evaluation Board (MEB). The MEB noted the applicants asthma was generally seasonal with flares in the spring and fall but in the past two years [the applicants] attacks have been increasing in frequency and severity. The MEB also noted the applicant suffered from a chronic recurrent dermatological condition which had its origins in the spring of 1966 and mild degenerative arthritis of his feet. The applicant concurred with the findings of the MEB and was referred to a PEB.
An informal PEB convened on 18 December 1974 and found the applicant unfit as a result of his three diagnosed medical conditions. The PEB recommended the applicant be permanently retired with a combined 40 percent disability rating. The applicant nonconcurred with the informal boards recommendation and demanded a formal hearing.
The formal PEB convened on 27 January 1975 and addressed the disability percentage recommended by the informal board. The formal PEB ultimately increased the applicants disability rating to 50 percent and included information about the applicants painful knee which was treated by medical personnel on 21 January 1975. The formal PEB noted that none of the applicants disabling medical conditions resulted from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.
The applicant concurred with the findings and recommendations of the formal PEB and was permanently retired by reason of disability on 14 March 1975.
In processing this application an advisory opinion (COPY ATTACHED) was provided by the Physical Disability Agency (PDA). The opinion specifically addresses the basis for determining whether a disability can be considered a direct result of armed conflict or caused by an instrumentality of war and need not be repeated. The opinion concluded there was no evidence to support the applicants contention and recommended his application be denied.
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 14 March 1975, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 March 1978.
The application is dated 4 August 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
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