MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 9 September 2003
         DOCKET NUMBER: AR2003088286


         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas A. Pagan		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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: That the Standard Form (SF) 89 (Report of Medical History), dated 5 July 1968, be removed from his service records. He states, in effect, that the subject document is false and that the statement "I am in good health" written thereon and attributed to him is a forgery. He contends that he was exposed to Agent Orange while performing annual training at Fort Drum, New York.

In support of his request, he submits an undated report of handwriting analysis prepared by the Palm Beach County Sheriff's Office, West Palm Beach, Florida. The report concludes that the applicant did not complete or sign the SF 89, but that the physician who signed the form at the bottom of page 2 is the person who completed the document.

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 complete military records were not available to the Board for this review. Information herein was obtained from a partial record consisting mainly of the applicant's DD Form 4 (Enlistment Record), and copies of SF-89 and SF-88 (Report of Medical Examination).

The evidence available indicates that, on 26 May 1963, the applicant enlisted in the New York Army National Guard (NYARNG) for a period of 6 years. He was ordered to active duty for training from 21 July-22 December 1963 during which period he completed the training requirements and was awarded military occupational specialty (MOS) 111.00 (Light Weapons Infantryman). Upon completion of his active duty for training period, he was released to the NYARNG.

The available record contains no further evidence of any additional active duty periods of service. It is presumed that the applicant's service obligation under the Universal Military Service Training Act terminated in May 1969.

In addition to the contested 5 July 1968 SF 89, the available record contains an SF 88 (Report of Medical Examination), dated 10 December 1967, which contains no annotations in the area "Clinical Evaluation - Notes (Describe every abnormality in detail)." This was only 7 months prior to the date of the contested document.

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As part of the Army physical evaluation process then in use, the SF 88 and the SF 89 were completed for each soldier undergoing medical examination. The forms were designed to be completed by medical personnel, with input from the soldier undergoing examination. In some instances, the SF-89 was given directly to the soldier for completion prior to the actual medical examination. However, there was never a requirement for the soldier to personally complete Item 17 of the SF 89 in his/her own handwriting. The examining physician or medical staff would merely ask the soldier "to explain, in his/her own words, his/her present health," then would have annotated Item 17 in accordance with the soldier's reply.

In June 1984, the applicant appealed to this Board for correction of his military record to show that he sustained an injury to his finger in July 1965 while on annual active duty for training at Fort Drum, New York. His request was denied, due to a lack of evidence and to failure to timely file. At that time, he made no mention of being exposed to Agent Orange or that his Official Military Personnel File contained a document he believed to be incorrectly completed.

In 1978, the Department of Veterans Affairs (DVA) set up a register of Vietnam veterans who were worried that they may have been exposed to chemical herbicides, including Agent Orange, which might now be causing a variety of ill effects. The DVA presumes that all military personnel who served in Vietnam between 1962 and 1975 were exposed to Agent Orange, and federal law presumes that certain illnesses are a result of that exposure. This so-called "presumptive policy" simplifies the process of receiving compensation for these diseases since the DVA foregoes the normal requirements of proving that an illness began or was worsened during military service. Based on clinical research, the following diseases are on the DVA's Agent Orange list of presumptive disabilities: chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; porphyria cutanea tarda; respiratory cancers (lung, bronchus, larynx and trachea); prostate cancer; soft-tissue sarcoma; acute and subacute peripheral neuropathy; and, most recently, diabetes mellitus. In addition, new sites are being looked for presumptive Agent Orange exposure. The Korean demilitarized zone during the period 1968 and 1969 was recently added, and service at Fort Drum during 1959 is being considered as an addition.

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 5 July 1968. The time for the applicant to file a request for correction of any error or injustice expired on 5 July 1971.

The application is dated 13 March 2002 and the applicant has not explained, or otherwise satisfactorily demonstrated by competent evidence, that it would be in the interest of justice to excuse his failure to apply within the time allotted.

The applicant has not provided sufficient evidence to demonstrate that he was not in good health at the time of his examination on 5 July 1968 or that the SF-89 of the same date is a forgery. The Board notes the Palm Beach County Sheriff's Office, in its report of handwriting analysis, acknowledges that photocopies and facsimile copies of documents may distort handwriting characteristics making an unequivocal determination of the writer unlikely. Further, the Board points out that medical personnel often completed the SF-89 from verbal input from the examinee.

The applicant has not shown that he was ever exposed to Agent Orange at Fort Drum. The Board notes that Fort Drum was a test site for herbicides in 1959, but that it has not been added to the DVA's presumptive list of Agent Orange sites. In any event, the applicant's limited records do not show a connection to Fort Drum before 1965; this is well after the 1959 date of herbicide testing.

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.

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Prior to reaching this determination, the Board looked at the applicant's available records. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__slp___ __wtm___ __tap___ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2003088286
SUFFIX
RECON
DATE BOARDED	20030909
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.
3.
4.
5.
6.