RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 AUGUST 2005
      DOCKET NUMBER:  AR20040010427


      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. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard Hassell               |     |Member               |

      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.  In effect, the applicant requests physical disability retirement.

2.  The applicant states that he should have been medically retired in
February 1945 after he lost his left leg in Germany while assigned to
Company B,            1st  Battalion, 413th Infantry Regiment of the 104th
Infantry Division.  He should have been medically discharged with a
disability percentage rating with retirement benefits because of the
extensive injury he received.

3.  The applicant provides a copy of his Enlisted Record and Report of
Separation – Honorable Discharge (WD AGO Form 53-55) and a copy of a
 1 November 1945 document to the applicant from the Veterans Administration
(VA) notifying him that he was awarded a pension because of the loss of his
left leg.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 September 1945.  The application submitted in this
case is dated 18 November 2004.

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 limitations 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’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
are sufficient documents available for the Board to conduct a fair and
impartial review of this case.

4.  The applicant entered on active duty on 21 June 1943 and served in the
European Theater of Operations during World War II with Company B, 413th
Infantry Regiment, arriving in that theater in September 1944.  He was
wounded in action on 26 February 1945.  He returned to the United States in
April 1945.  e was discharged with a cerHHe was discharged with a
certificate of disability at McGuire General Hospital in Richmond, Virginia
on 29 September 1945.

5.  Information from the hospital admission cards created by the office of
The Surgeon General shows that the applicant was a battle casualty as a
result of a land mine and that his leg was amputated.

6.  On 1 November 1945 the VA notified the applicant that he was awarded a
monthly pension of $81.00 because of the loss of his left leg.

7.  Prior to 1 October 1949, on which date the Career Compensation Act of
1949, Public Law 351, 81st Congress, became effective, there was no
provision of law whereby an enlisted man with less than 20 years of service
could be discharged with severance pay or be retired by reason of physical
disability.  Under then existing law, compensation for service-connected
disabilities was entirely under the jurisdiction of the VA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was seriously wounded in action, losing his left leg, as
a result of his service to his country during World War II.  Unfortunately,
however, as indicated above, there was no provision of law at that time
wherein he could be retired because of his physical disability.
Compensation for his service-connected disability was the responsibility of
the VA.  That agency awarded the applicant a service-connected disability
rating in 1945, and it is presumed that he is continuing to receive
compensation from the Department of Veterans Affairs for his disability.
Nonetheless, the applicant cannot be retired because of his physical
disability.

2.  In view of the above information, the applicant’s request for physical
disability retirement cannot be granted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 September 1945, the date of his
separation from active duty.  The ABCMR was not established until 2 January
1947.  As a result, the time for the applicant to file a request for
correction of any error or injustice expired on 1 January 1950.  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 the failure to timely file.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__PS ___  __YM ___  ___LH __  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.




                                  ______  Paul Smith_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010427                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|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.                      |                                        |


-----------------------
[pic]