RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050001775


      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             |
|     |Ms. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 records be corrected to show that his
disability did not exist prior to service (EPTS), that it was service
aggravated, and, in effect, that he be granted a medical discharge.

2.  The applicant states, in effect, that while at Fort Devens,
Massachusetts, he was tortured during jungle warfare camp and taken to the
hospital for treatment.  He further states that his medical records were
completely falsified.

3.  The applicant provides a self-authored letter in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 November 1966.  The application submitted in this case is
dated 21 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 enlisted in the Army on 25 August 1965 for a period of 4
years.
He completed the required training and was awarded the military
occupational specialty (MOS) 05H20 (Morse Interceptor).  He served in
Germany from 16 May 1966 to 3 November 1966.  The highest rank he attained
was specialist four.

4.  The applicant’s military record does not contain his service medical
records and the applicant did not provide any medical records or evidence.

5.  A DA Form 8-118 (Medical Board Proceedings), dated 3 October 1966
showed that a Medical Evaluation Board (MEB) convened at the U.S. Army
General Hospital in Frankfurt, Germany as a result of the applicant’s
chronic low back difficulties.


6.  The MEB proceedings stated that the applicant was diagnosed with
spondylolisthesis [stress fracture in one of the bones (vertebrae) that
make up the spinal.  The column stress fracture weakens the bone so much
that it is unable to maintain its proper position and the vertebra starts
to shift out of place].

7.  The MEB determined that the applicant was medically unfit and that his
condition existed prior to service (EPTS).  The Board further determined
that the applicant’s condition was not aggravated by his service and
directed that he be returned to duty for administrative separation.

8.  On 3 October 1966, the applicant requested discharge for a condition
that existed prior to his entry on active duty.  The applicant declined the
option to have his case reviewed by the Physical Evaluation Board and
acknowledged that he would be discharged without disability retirement or
disability severance pay.  The applicant authenticated this document with
his signature.

9.  On 6 November 1966, the applicant was honorably discharged after
completing 1 year, 2 months, and 14 days of service.  Item 11c (Reason and
Authority) contains the entry "AR 635-40A, "SPN" [Separation Program
Number] 277 “Physical Disability by Medical Board.”

10.  The applicant provided a self-authored letter, in which he stated, in
effect,
that, during jungle warfare training, he was kicked in his back a number of
times which he believes contributed to his back problems later.  He
continued that after he returned to the barracks he felt a tingling
sensation go down his spine.  He explained that shortly thereafter, he
started experiencing pain from his neck down to his spine and legs.

11.  The applicant further explained that he was taken to the hospital and
given a shot for pain.  The applicant stated that he later requested
medical records which falsely show that was admitted with a cold, fever,
and low back pain.  The applicant also stated that his medical records
showed a toe infection and appear to cover up facts. The applicant
concluded that his claim was denied by the Veterans Administration (VA)
despite treating him in 1970.

12.  Army Regulation 635-40A, paragraph 33, in effect at the time, stated
that members of the Army ordered into the active military service for a
period in excess of 30 days, and members of the National Guard and the
United States Army Reserve, including trainees under the RFA 55 (Reserve
Forces Act of 1955) program ordered to ACDUTRA (Active Duty for Training)
in excess of
30 days, and who are determined to be unfit by a medical board for
retention on active duty by reason of physical or mental disqualifications
which are not incurred or aggravated while entitled to receive basic pay,
may request either discharge or relief from active duty or elect an
appearance before a physical evaluation board.

13.  Army Regulation 635-40, in pertinent part, states that according to
accepted medical principles, certain abnormalities and residual conditions
exist that, when discovered, lead to the conclusion that they must have
existed or have started before the individual entered the military service.
 Examples are congenital malformations and hereditary conditions or similar
conditions in which medical authorities are in such consistent and
universal agreement as to their cause and time of origin that no additional
confirmation is needed to support the conclusion that they existed prior to
military service

14.  Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim of a service-connected injury and falsified
medical records have been carefully considered and found to be without
merit.

2.  The action by the VA does not necessarily demonstrate an error or
injustice on the part of the Army.  The VA, operating under its own
policies and regulations, determines service connection and assigns
disability ratings as it sees fit.

3.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.

4.  The applicant did not contest the MEB findings that his medical
condition existed prior to his service.  He acknowledged that he understood
his rights included consideration of his case by a Physical Evaluation
Board.  However, he elected not to exercise that right.  He also understood
that he would be separated by reason of an EPTS physical disability.
Therefore, there appears to be no error in the narrative reason for his
separation as shown on his DD Form 214.

5.  There are no medical records for the Board to review and the applicant
provided no medical records or other evidence to support his claim that his
medical records were falsified.  Therefore, there is insufficient evidence
upon
which to base correcting these records.
6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 November 1966; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 November 1969.  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

__BPI___  __DWS__  __EEM__  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.




                                  ____ Bernard P. Ingold ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001775                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051206                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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