RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         1 August 2006
      DOCKET NUMBER:  AR20050017452


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Conrad Meyer                  |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, in effect, that his records be corrected by
documenting his involvement in a jeep accident and the injuries he received
as a result, and to show he had flat feet.

2.  The applicant states, in effect, that he was involved in a jeep
accident in November 1955, which resulted in injuries to his back.  He
claims he has been trying to prove his injuries were received in this
accident for 15 years, and if the accident were properly documented in his
record, he would be receiving considerably more compensation.  He states
that he filed a claim with the Department of Veterans Affairs (VA) that was
denied because he believes the evidence he submitted was misread.

3.  The applicant provides a self-authored statement, two third-party
statements, a Department of Veterans Affairs (VA) Rating Decision, and a
Congressional Inquiry in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 February 1957, the date of his separation from active
duty.  The original application submitted in this case was dated 11
September 2002, and his latest request was received from a Member of
Congress on 8 December 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's records were seriously damaged in a fire at the
National Personnel Records Center in 1973.  This case is being considered
using the partially legible records that remain, his final separation
physical examination
(SF 88), his separation document (DD Form 214), and the documents he
submitted.

4.  The applicant's record shows he enlisted in the Regular Army and
entered active duty on 9 March 1954.  He was trained in, awarded, and
served in military occupational specialty (MOS) 710 (Clerk), and the
highest rank he attained while serving on active duty was specialist 3
(SP3).

5.  The applicant's record contains no medical treatment records that
indicate he was treated for a back injury he received in a jeep accident
while serving on active duty.   His record does contain a Report of Medical
Examination (SF 88), documenting his separation physical examination, which
was completed during his separation processing in 1957.

6.  The SF 88 on file shows the applicant's back and feet were found
"Normal" during the clinical evaluation of his separation physical
examination.  The medical examination report notes no defects, and provides
no indication that the applicant suffered from any disabling medical
condition at the time of his separation.  Further, the examining physician
assigned the applicant a Physical Profile of 111111, and a Physical
Category of A, which indicates he was in good health and suffered from no
disabling medical conditions at that time.  The SF 88 also shows the
applicant was found qualified for retention/separation and medically
cleared for separation by competent medical authority.

7.  On 23 February 1957, the applicant was honorably separated under
provisions of paragraph 7, Army Regulation 635-205, by reason of early
separation of overseas returnee.  The DD Form 214 he was issued at the time
shows that he completed a total of 2 years, 11 months, and 15 days of
active military service, and he held the rank of SP3 at the time.  The
applicant authenticated this document with his signature on the date of his
separation.

8.  The applicant provides two third-party statements from individuals who
were stationed with him in Germany.  The first individual indicates that
the applicant was injured in a jeep accident sometime in November 1955,
while he was on duty and enroute to pick up mail.  He further indicates he
saw the jeep, which was in bad shape, when it was brought back to the base,
and the applicant later told him how the accident happened.  The second
individual also confirms the applicant was in a jeep accident and was
struck in the back by a sack of chains while being tossed about the jeep.
He indicates these facts were related to him by the applicant when he
returned to the base.  He indicates that even though the applicant
continued performing his duties, all the members of the squad knew he was
hurting.  He further indicates that when he left Germany in February 1958,
the applicant seemed to be doing alright.


9.  The applicant also provides a VA Rating Decision, dated 2 April 2002.
This document shows the applicant's request for service connection for low
back, bilateral legs and knees, left ankle, and cervical spine was denied.
The reasons cited for the denial were that there was no evidence the
applicant was treated for these conditions while on active duty.  It
further indicated that the applicant's separation physical examination was
completely negative for any permanent residual or chronic disability, or
any mention of an accident in service.

10.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System (PDES) and sets forth policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards
of unfitness because of physical disability.  It states, in pertinent part,
that the mere presence of impairment does not, of itself, justify a finding
of unfitness because of physical disability. In each case, it is necessary
to compare the nature and degree of physical disability present with the
requirements of the duties the Soldier reasonably may be expected to
perform because of their office, grade, rank, or rating.

11.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs (VA) to award compensation for a medical
condition which was incurred in or aggravated by active military service.
The VA, in accordance with its own policies and regulations, awards
compensation solely on the basis that a medical condition exists and that
said medical condition reduces or impairs the social or industrial
adaptability of the individual concerned.  The VA can evaluate a veteran
throughout his lifetime, adjusting the percentage of disability based upon
that agency's examinations and findings.  However, these changes do not
call into question the application of the fitness standards and the
disability ratings assigned by proper military medical authorities during
the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to
document injuries he sustained in a jeep accident in 1955, and the
supporting evidence he submitted were carefully considered.  However, the
applicant's record is void of any documents related to the jeep accident in
question, and of any medical treatment records indicating he was treated
for injuries he received as a result of this accident.

2.  The evidence of record does include a separation physical examination
that confirms the applicant was in good health at the time of his
discharge.  It also shows that his back and feet were within normal
clinical evaluation parameters at the time.  Further, the medical
examination report documents no disabling physical defects, or medical
conditions, and it confirms the applicant was medically cleared for
separation by competent medical authority.

3.  The veracity of the applicant's claim that he was involved in a jeep
accident, and of the information provided in the supporting statements is
not in question.  However, absent any evidence of record to corroborate the
applicant's presentation of the facts and circumstances surrounding the
jeep accident, or that confirm he was treated for injuries sustained in
this accident, there is an insufficient evidentiary basis to support
granting the requested relief.  It is not the policy of the Board to create
or alter service medical records.  Such records merely reflect the
observations and opinions of medical professionals at the time they were
recorded.

4.  The applicant is also advised that the authority and responsibility for
assigning disability ratings and providing compensation for service
connected disabilities subsequent to a member's discharge is within the
purview of the VA.  Therefore, absent any evidence that would support a
modification of his existing military records, any further appeals on this
matter should be addressed to the VA.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 February 1957, the date of his
separation from active duty.  Therefore, the time for him to file a request
for correction of any error or injustice expired on 22 February 1960.  He
failed to 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

___KAN     __CVM__  __YM ___  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.




                                  _____Kathleen A. Newman____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017452                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/01                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1957/02/23                              |
|DISCHARGE AUTHORITY     |AR 635-205                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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