MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2001
         DOCKET NUMBER: AR2001058642

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		Member
Mr. William D. Powers		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his military medical records be corrected to show an ankle injury he received in basic training was to the right rather than the left ankle.

APPLICANT STATES: In effect, that his Army medical records erroneously indicate that an ankle injury he received in October 1970 was to his right ankle, when in fact the injury was to his left ankle. He claims to have made a medical claim to the Department of Veterans Affairs (VA), which was returned to him indicating that his case is not well-grounded because his military medical records do not support his claim of a service related injury to his right ankle and instead document an injury to his left ankle. He indicates that his military medical records need to be corrected in order for his VA claim to receive further consideration and processing. The applicant states that he was injured on
28 October 1970, at Fort Dix, New Jersey while participating in physical training. During the run, because it had been dry all week and the track was dusty, his glasses smeared, which caused him not to see a small tree stump and resulted in his tripping over the stump and injuring his ankle. He indicates that at the infirmary his injured ankle was X-rayed, an ice pack was applied, the ankle was wrapped in an ace bandage, and he was sent back to the barracks. He also claims that he did not see the physician’s report at the time and had no idea that the doctor had written down that the injury was to his left foot when he had actually sprained his right ankle. He further indicates that he understands how the error occurred, as the infirmary was a very busy place, but honestly has no recollection of ever having injured his left ankle while in the service. On the other hand, he comments that his right ankle has been chronically weak, has sent him to the emergency room on numerous occasions, and has required two surgeries to stabilize it in the last ten years, while his left ankle has been fine. In support of his application, he provides two medical documents: a medical clinical record that contains an entry that shows he received a glass puncture wound and ankle injury to the right foot on 6 August 1973; and a radiographic report, dated
28 October 1970, which indicates he sprained his ankle that day, which resulted in soft tissue swelling with no fracture, and that an X-ray was taken, the report does not indicate which ankle was injured.

EVIDENCE OF RECORD: The applicant's military records show:

On 24 September 1970, he enlisted in the Regular Army for 3 years. He successfully completed basic training at Fort Dix, New Jersey and advanced individual training (AIT) at Fort Benjamin Harrison, Indiana. He was awarded military occupational specialty 74E (Computer Systems Programmer) and was assigned to West Point, New York for his first permanent duty station.

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The applicant continued to serve at West Point until 21 September 1973, when he was released from active duty. The separation document (DD Form 214), issued to the applicant on the date of his separation, indicates that he was honorably released from active duty at the expiration of his term of service after completing a total of 2 years, 11 months, and 28 days of active military service.

There is no separation physical examination on file and the applicant’s medical records were not included in the records provided to the Board. The available records do include a National Archives and Records Administration (NARA) Form 13017 (Reply to Medical Records/X-Ray Requests), which confirms that on
19 January 2000, the applicant was provided copies of medical records and
X-rays he had requested.

The applicant provided two medical record documents with his application: a radiographic report, dated 28 October 1970, which confirms an X-ray of the applicant’s ankle was taken on that date, however, this report does not indicate what ankle was injured or X-rayed; and a clinical record of treatment, which shows that on 6 June 1973, the applicant was treated at the hospital at West Point for an injury to his right foot that resulted in soft tissue swelling in the ankle.

Army Regulation 15- 185, the regulation under which this Board operates states that the Army Board for Correction of Military Records is not an investigative body and must act on the basis of the evidence contained in an applicant’s official military record and other independent evidence or documentation provided with the application. In the absence of evidence to show that a material error or injustice exists, the Board must presume government regularity and assume that the actions taken and records maintained by the Army are correct.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that the ankle injury he received in basic training, in October 1970, was to his right ankle and not the left as indicated in the military medical record but finds no evidentiary basis on which to support this claim.

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2. While the Board has no reason to question the applicant’s recollection of the events and of which ankle was injured, there are no military medical records available that sufficiently prove this claim. Therefore, by regulation, the Board is compelled to presume government regularity and assume that the medical records prepared by the Army in this case are correct.

3. By law, the VA is permitted to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA makes these decisions in accordance with its own policies and regulations and awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

4. Therefore, it appears to the Board that the VA likely has the independent authority and ability to judge the validity of the applicant’s claim based on his statement of the events and circumstances, the existing military medical records, and any current medical testing and or evaluation they deem appropriate to conduct in order to make an independent decision and judgement of the applicant’s disability claim.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__JNS__ __ MVT __ __WDP__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058642
SUFFIX
RECON
DATE BOARDED	2001/07/24
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1973/09/21
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177	108.0000
2.
3.
4.
5.
6.