RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 19 FEBRUARY 2004
         DOCKET NUMBER: AR2003092312


         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.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Robert L. Duecaster		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that the medical records created in 1968 while he was on active duty be corrected to show that he injured his right knee during his period of service, and that it was his left knee that was injured playing football prior to his military service. He also requests that his date of birth on a VA Form 29-8284 (Certification of Servicemen's Group Life Insurance) that was completed on him on 5 April 1968, be corrected.

2. The applicant states that he hurt his right knee while in the service, and his left knee prior to his service. The doctor made a mistake and wrote down information on the wrong knee. He did not discover the error until he went to a board hearing in Jackson, Mississippi.

3. The applicant provides the documents depicted herein.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 5 April 1968. The application submitted in this case is dated 12 May 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant was inducted into the Army on 29 February 1968. His induction records show his date of birth as 26 July 1949, as do other records created prior to and after his entry on active duty. A report of medical examination dated 28 February 1968 shows that the applicant was medically qualified for induction with a physical profile serial of 1 1 1 1 1 1. On 1 March 1968 he was assigned to Fort Benning, Georgia for training.

4. A 21 March 1968 report of medical examination shows that the applicant had a tear to his right medial meniscus, manifested by swelling and pain, that was secondary to a football injury in September 1967 – EPTS (existed prior to service). The examining physician indicated that his injury was disqualifying and recommended that the applicant be separated from the service. He and another medical officer signed the report.

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5. A clinical record narrative summary, dated 14 March 1968, states, "This patient is a 18 year old while male draftee with 15 days of military service. EM presents history of right knee injury in September 1967 in football, followed by swelling. EM states since that time the knee has been giving way. Since entering service EM has been seen in his unit dispensary with pain and swelling in his right knee, from prolonged standing and marching, he was subsequently referred to the Orthopedic Clinic for evaluation. No history of injury since entering the Army. … The general physical examination was essentially normal with the exception of the right knee. Examination of the right knee reveals swelling and plus McMurray's sign."

6. The applicant requested discharge from the Army under the provisions of Army Regulation 635-200, paragraph 5-9, stating that he had been notified that he was considered unfit for retention in the military service due to a medical disability which was considered to have existed prior to 29 February 1968, and which appeared to be not incident to, or aggravated by, prior or subsequent military service. He stated that he certified that it had been explained to him that, as a result of his application and provided that the approved findings of a Medical Board corroborate the preliminary findings concerning his unfitness, he might be discharged for medical disability without further hearing. He stated that he understood that such separation would be without disability retirement or disability severance pay; however, it did not preclude his applying for benefits administered by the Veterans Administration.

7. Medical board proceedings conducted on 26 March 1968 reflect that the applicant was medically unfit because of a tear to his right medial meniscus, manifested by swelling and pain, which was secondary to a football injury in September 1967. The proceedings indicated that the injury was not incident to service, but existed prior to his service, and was not aggravated by active duty. The proceedings clearly indicated that his injury was to his right knee. A brief summary of his medical condition indicated, "Instability of right knee." The board recommended that the applicant be separated from the service. Three Medical Corps officers, as members of the board, signed the proceedings. The proceedings were approved on 26 March 1968, and the applicant indicated on that date, by signing in the appropriate block, that he had been informed of the approved findings and recommendations of the board.

8. On 28 March 1968 the Commanding Officer, Martin Army Hospital at Fort Benning requested that the applicant be discharged. The separation authority approved the request and directed that the applicant receive an honorable discharge. He was discharged on 5 April 1968. He had 1 month and 7 days of service.

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9. On the same date that the applicant was discharged, an official at the Fort Benning Transfer Point completed a VA Form 29-8284 which indicated that the applicant's servicemen's group life insurance was terminated because of his separation from active duty. On that form his year of birth was mistakenly entered as 1929, vice 1949.

10. A 26 March 1977 clinical record indicates that the applicant was referred by the AFEES (Armed Forces Entrance and Examining Station) at Jackson, Mississippi to an orthopedic surgeon because of a history of injury to his right knee since 1968 while in the service, and that he was given a medical discharge at that time. The consultation report indicates that the applicant indicated he had no difficulty with his right knee until his first day in basic training in 1968, when he tripped over a desk during the orientation process. The applicant stated that he continued to have difficulty with the knee and was discharged with a swollen knee 5 weeks after his induction.

11. A 26 March 1977 report of medical examination indicates that the applicant was not qualified for enlistment. His physical profile serial was 1 1 3 1 2 1. That report indicated that he had an old right knee injury. The report of medical history that he furnished for the examination indicates that he had a swelling of his knee following an injury in service, and that he was discharged because of his knee condition.

12. In what appears to be a record of the applicant's injuries, treatment thereof, and charges for the treatment, a notation dated 12 December 1967 indicates that the applicant was playing football during P. E. (physical education) and all of a sudden he was on the ground. His left knee and head hurt.

13. Army Regulation 635-200, then in effect, provides for the separation of enlisted personnel. Paragraph 5-9 of that regulation states, in effect, that commanders are authorized to discharge individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment. A medical board must find that the individual has a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time, and that that condition does not disqualify him from retention in the military service under the provisions of chapter 3, Army Regulation 40-501. A request for discharge will be submitted by the individual to his unit commander within 4 months from date of initial entry on active duty or initial entry on active duty for training.

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DISCUSSION AND CONCLUSIONS:

1. Competent medical personnel determined on three different occasions in 1968 that the applicant was medically unfit for retention because of his right knee condition that existed prior to his entry on active duty in February of that year. The applicant himself requested discharge because of his preexisting medical disability, and also acknowledged, by his signature on the medical board proceedings, that he injured his right knee prior to entering the service.

2. The 1977 medical documents that the applicant submits with his request show only that the applicant himself provided the information to medical personnel that he injured his right knee while on active duty. Documents created in 1968, as indicated above, clearly refute this information. Noted is the notation that he hurt his left knee and head in December 1967 while playing football. That information, however, is not a basis to correct his record as he requests. Notwithstanding his contentions, the evidence clearly shows that he was discharged because of his right knee condition that existed prior to his induction on 29 February 1968. The doctors did not make a mistake.

3. The year of the applicant's birth, 1929, on the VA form is an obvious error, that has caused no harm to the applicant and has had no effect on him or anyone else. The applicant may want to correct this himself by lining through that incorrect year and entering the correct year.

4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 April 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 April 1971. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__RJW__ __MHM__ __RLD __ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  __Raymond J. Wagner___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003092312
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040219
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.00
2.	124.00
3.
4.
5.
6.