RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 JULY 2004
      DOCKET NUMBER:  AR2003098196


      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 K. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Kenneth Lapin                 |     |Member               |
|     |Mr. Antonio Uribe                 |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show that he
suffered abnormal vision loss which occurred in service and was aggravated
by diseases incurred in combat.

2.  The applicant states that the Department of Veterans Affairs (VA) has
denied his request for a service connected disability rating for visual
impairment, stating that he could not prove that his vision loss was
aggravated by diseases incurred in combat.

      a.  His vision was 20/20 when he enlisted in the Army in January
1938, continued to be 20/20 when he was discharged in 1942 to accept a
commission as a second lieutenant until April 1949 when his vision was
recorded as 20/30.  He did not need glasses.  His vision was 20/30 through
1950.

      b.  He was an infantry company commander in combat in Korea in 1951.
In February of that year he became seriously ill and was in a coma for
several weeks.  He was diagnosed with recurrent malaria, which he
contracted in the Philippines in 1942, infectious hepatitis and jaundice,
and was hospitalized for seven weeks.  In August 1951 he was again
hospitalized and suffered severe headaches.  Records show that his vision
had deteriorated to 20/150.  He was issued glasses.  He was hospitalized
again in 1952.  His vision deteriorated to 20/200, and he had a physical
profile serial of 3 under eyes.  An eye examination in 1953 showed that his
vision was 20/300, right eye, and 20/200, left eye and a restriction of no
duty where perfect vision was required.  A 1957 examination showed his
vision had deteriorated to 20/400 bilaterally and that his eye condition
was diagnosed as abnormal - compound myopic astigmatism.

      c.  His medical records clearly show that he suffered a loss of
vision that was aggravated by diseases which he incurred in combat,
progressing from World War II to the Korean War.  The major changes to his
vision occurred during and after his hospitalizations and his continued
attacks of malaria, that occurred during and after he left the service.

      d.  Service connected disability for his vision loss has been denied
at various VA organizations.

3.  The applicant provides documents as depicted herein.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 February 1958.  The application submitted in this case
is dated 13 October 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 an infantry officer who retired from the Army on
          28 February 1958 with over 20 years of active service.

4.  The applicant enlisted in the Army in January 1938.  At the time of his
enlistment his vision was normal with 20/20 bilaterally.  He was appointed
a second lieutenant on 4 December 1942.  He served in the Pacific Theater
of Operations during World War II and served in Korea during the Korean
War.     While on active duty as a commissioned officer he was appointed to
the grade of warrant officer in the Regular Army, in July 1949 and again in
November 1954.  He was promoted to major on 8 August 1955.  His DD Form 214
(Report of Transfer or Discharge) shows that he was awarded the Silver
Star, Bronze Star, and Purple Heart with oak leaf cluster, among others.

5.  A 15 January 1941 report of physical examination shows that his vision
was normal.  A 16 August 1942 report of physical examination shows that his
vision was normal.

6.  A 12 September 1947 dispensary medical record shows that the applicant
was treated for a fever manifested by general malaise, severe headache,
generalized muscular and joint pain, and malaria, new acute.  The 377th
Station Hospital, however, did not concur, and diagnosed his condition as
influenza, moderate, acute, severe.

7.  A 13 April 1949 report of medical examination shows that the applicant
had normal vision, 20/20 in both eyes.  A 1949 ophthalmologic examination
report indicates that his vision bilaterally, without correction, was
20/30.

8.  In March 1951 his condition was diagnosed at malaria, chronic.  That
diagnosis was changed to hepatitis, infectious, with jaundice.  He was
evacuated from Korea to Japan in early March 1951, hospitalized, and
returned to duty on    18 April 1951.

9.  In August 1951 he was treated for chills and fever, and "old" malaria
and diarrhea.  He was admitted to the 361st Station Hospital and released
from the hospital on 16 August 1951.  The hospital record shows that he had
malaria in 1945 with recurrences in 1946, 1947, 1949, and in the spring of
1951, and that he was hospitalized each time.  His condition was diagnosed
as "old" malaria, species undetermined ("new" malaria, Leyte, Philippine
Islands, 1945), and enterocolitis (inflammation involving both the small
intestine and the colon).

10.  A 10 October 1951 report of physical examination indicates that the
applicant was physically capable of performing his duties with a physical
profile serial of  1 1 1 1 2 1.

11.  In November 1951 his vision, bilaterally, was corrected from 20/150 to
20/20.

12.  On 5 August 1952 he was admitted to Tokyo General Dispensary for
observation for possible malaria.  On 15 August 1952 the applicant was
treated for dermatitits.

13.  A 27 October 1952 report of physical examination show that the
applicant had defective vision bilaterally, 20/200 corrected to 20/20, with
a physical profile serial of 1 1 1 1 3 1, but that he was physically
capable of performing his duties.

14.  On 5 November 1952 the applicant was treated for pneumonia and was
hospitalized for one week at an Army hospital in Japan.  His treatment
record shows that he had a history of relapsing malaria, having been
hospitalized in August 1951 with a diagnosis of malaria, and suffering
several mild relapses after his discharge from the hospital.

15.  On 30 October 1953 he was treated for a sore throat, cold, and aching
in his chest.

16.  A 2 November 1953 medical certificate shows that he was physically
capable of performing his duties with a physical profile serial of 1 1 1 1
1 3 1.  That report indicated that his 20/200 vision in his right eye had
been corrected to 20/20 and his 20/300 vision in his left eye, to 20/20.

17.  On 3 December 1953 the applicant was treated for bronchitis,
pneumonia, and pharyngitis (inflammation of the pharynx).

18.  A 3 December 1957 report of medical examination (retirement physical)
shows that he was medically qualified for retirement with a physical
profile serial of 1 1 1 1 3 1.  That report indicates that the vision in
his right eye was 20/400 corrected to 20/25, and that the vision in his
left eye was 20/400 corrected to 20/20.  His eye condition was diagnosed as
compound myopic astigmatism.  In the report of medical history that he
furnished for the examination, the applicant stated that he was in good
health to the best of his knowledge.  He indicated that he had malaria in
1945, 1946, 1947, 1948; hepatitis in 1951; and malaria in 1951.
19.  On 24 March 2001 the applicant requested from the VA a corrected
decision regarding his claim for service connection for malaria.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant did contract malaria during World
    War II, and that subsequently he had several recurrences.  He was also
treated for pneumonia, hepatitis and jaundice.

2.  His vision deteriorated while in the service from 20/20 bilaterally at
the time of his 1938 enlistment, to 20/150 (corrected to 20/20), 20/200 in
October 1952, and 20/400 bilaterally (corrected as indicated above) at the
time of his retirement.

3.  There is no evidence, however, that the diseases that he incurred while
in the service affected his vision, notwithstanding the proximity in time,
e.g., treated for "old" malaria in August 1951 and diagnosed with 20/150
vision in November 1951 (versus 20/30 in 1949).  He has not proved that
such a relationship did exist.  Medical authorities, who treated the
applicant throughout his career, did not make that connection.

4.  The applicant was physically capable of performing his duties
throughout his military career.  He was medically fit for retirement in
1958.  His medical records, which he submits with his request, are correct
as depicted.  This agency cannot in all good faith change those records to
show that the diseases that he suffered caused his vision to deteriorate so
that he can obtain benefits from the VA.

5.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1958; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     27 February 1961.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  __KL  ___  __AU ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            _____Fred Eichorn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003098196                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040720                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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