RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 04 OCTOBER 2005
DOCKET NUMBER: AR20050001343
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. Ronald DeNoia | |Analyst |
The following members, a quorum, were present:
| |Mr. Mark Manning | |Chairperson |
| |Mr. Larry Bergquist | |Member |
| |Ms. Carmen Duncan | |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. The applicant requests that his medical records be changed to show that
he injured his left knee instead of his right knee.
2. The applicant states that it was his left knee that was injured and "he
should know what knee it was".
3. The applicant provides a Department of Veterans' Services letter, a
doctor's letter, two SF 519A (Radiographic Report), and an SF 89 (Report of
Medical History).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on 13 May 1955. The application submitted in this case is dated
18 January 2005.
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 indicated on his SF 89 that he injured his knee while
playing softball on 12 June 1954 in Landstuhl, Germany.
4. The letter from the Department of Veterans' Services is dated 18
January 2005 and states that the applicant's "right knee was not fractured,
it was his left knee".
5. The letter from the doctor states that the applicant is his patient and
"he has been seen for left knee pain, which is the result of a service
related injury". This letter is dated 21 October 2002.
6. The radiographic reports submitted by the applicant are dated 15 June
1954 and 8 July 1954. These reports show that the applicant's right knee
was treated for fracture of the patella.
7. The applicant's records contain another Radiographic Report, dated 22
July 1954. This report refers to the applicant's right patella fracture.
8. The applicant's records contain two DA Forms 8-24 (Unnamed Form).
These forms are stamped "Outpatient Service, US Army Hospital Landstuhl,
Germany". The first form is dated 15 June 1954. It contains the
handwritten notes: "Had a sore right knee for about 2 weeks. Last night
hurt knee playing ball. X-ray right knee". The second DA Form 8-24 is
dated 8 July and contains the handwritten notes: "fracture of rt patella".
9. An SF 88 (Report of Medical Examination, undated, given for the purpose
of transfer, shows in item 73, "Jun '54 Fractured right knee cap" and shows
the applicant was treated at 2nd General Hospital, Landstuhl, Germany.
DISCUSSION AND CONCLUSIONS:
1. 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.
2. The letters from the Department of Veteran Services and the applicant's
personal doctor state that his left knee cap was injured. Since the injury
occurred over 40 years ago and the letters were written relatively recently
(less than 3 years ago), they do not provide first hand information.
3. This injury occurred in 1954. Hospital records originated at the time
show that it was the right patella that was fractured. The right patella
fracture was treated on separate occasions by at least three Army doctors,
one of whom examined the applicant twice, and is referenced in notes
presumably written by attending medical personnel. It is highly unlikely
that all these doctors and trained medical personnel misdiagnosed and
treated the wrong knee.
4. In the absence of evidence that shows the applicant's left knee was
injured, while in the service, there is no basis to grant relief in this
case.
5. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 May 1955; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 May 1958. 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 FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___MM__ ____LB__ ___CD __ 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.
_____Mark Manning______
CHAIRPERSON
INDEX
|CASE ID |AR20050001343 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20051004 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |124.0100.0000 |
|ISSUES 1. | |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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