RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 September 2006
      DOCKET NUMBER:  AR20060001738


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Richard O. Murhy              |     |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 disability rating be corrected to
include the diagnosis of post-traumatic stress disorder (PTSD) and to
increase his rating to 50 percent.

2.  The applicant states that he was recently informed of Department of
Veterans Affairs (VA) changes with [regard to] PTSD.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 April 1971.  The application submitted in this case is
dated          24 October 2005 and was received in this office on 3
February 2006.

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 was inducted into the Army on 18 March 1969.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  The applicant arrived in Vietnam and was assigned to Company A, 3d
Battalion, 187th Infantry on 19 April 1970.  He sustained an injury when
another Soldier accidentally fired a shotgun round and hit the applicant in
the left leg on 11 May 1970.

5.  On 27 January 1971, a Medical Evaluation Board (MEB) found the
applicant to be medically unfit due to osteomyelitis, chronic, left tibia;
and loss of muscle substance, moderate, left leg, with loss of function.
The MEB referred him to a Physical Evaluation Board (PEB).

6.  On 9 February 1971, an informal PEB recommended the applicant be placed
on the Temporary Disability Retired List (TDRL) with a 30 percent
disability rating for osteomyelitis, chronic, left tibia, with discharging
sinus (20 percent); and muscle injury, Group XII, left, moderate (10
percent).

7.  On 1 April 1971, the applicant was released from active duty and placed
on the TDRL the following day.

8.  On 3 May 1973, an informal TDRL PEB found the applicant unfit due to
osteomyelitis, chronic, left tibia, with discharging sinus (20 percent);
and muscle injury, Group XII, left, moderate (10 percent).  The informal
PEB recommended he be permanently retired with a 30 percent disability
rating.  The applicant did not concur and requested a formal hearing.

9.  The applicant appeared and testified before a formal TDRL PEB.  The
hearing was primarily concerned with whether his muscle injury rating
should be increased from 10 percent to 20 percent.  At the end of the
hearing, he was asked if there was anything he felt was important that had
not yet come up during the hearing but that he would like to present to the
board.  He replied in the negative.

10.  On 5 June 1973, the formal TDRL PEB found the applicant to be
medically unfit due to osteomyelitis, chronic, left tibia, with discharging
sinus (20 percent); and muscle injury, Group XII, left, moderately severe
(20 percent).  The formal PEB recommended he be permanently retired with a
40 percent disability rating.

11.  The applicant was removed from the TDRL on 31 July 1973 and
permanently retired effective 1 August 1973 with a 40 percent disability
rating.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  It states that there is no legal requirement in
arriving at the rated degree of incapacity to rate a physical condition
which is not in itself considered disqualifying for military service when a
Soldier is found unfit because of another condition that is disqualifying.
Only the unfitting conditions or defects and those which contribute to
unfitness will be considered in arriving at the rated degree of incapacity
warranting retirement or separation for disability.

13.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant’s PTSD did not make him unfit for duty at
the time he underwent his initial PEB or his TDRL PEB.  It is acknowledged
that conditions arising from active duty may not manifest themselves until
years later. However, the Army’s rating is dependent on the severity of the
unfitting condition at the time of separation.  The VA has the
responsibility and jurisdiction to recognize and rate any new service-
connected conditions that later manifest themselves.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 April 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         31 March 1974.  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.

3.  It is recognized that the applicant may not have believed he could
apply until after the VA rated him for PTSD.  His case has been considered
on its merits even though it was not submitted within the 3-year statue of
limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ena___  __rml___  __rom___  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.




                                  __Eric N. Andersen____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001738                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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