RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 OCTOBER 2006
      DOCKET NUMBER:  AR20060002462


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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, disability retirement or separation.


2.  The applicant states he was medically qualified to enter the Army and
after a period of time, which included basic and advanced individual
training, he was determined to be physically disqualified, it was concluded
that his medical condition was not aggravated by his military service and
he was subsequently discharged.

3.  The applicant provides no additional evidence in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 September 1951.  The application submitted in this
case is dated
5 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.  Records available to the Board indicate the applicant underwent a
physical examination on 4 December 1950 in preparation for his induction
into the Army.  The examination noted the applicant had suffered a broken
toe about 3 years prior to being inducted into the Army.  He was, however,
found medically qualified for induction but issued a physical profile for
an old fracture of his right big toe.

4.  On 11 January 1951 the applicant was inducted into the Army.  He
successfully completed basic and advanced individual training and was
assigned duties as a rifleman at Camp Atterbury, Indiana.

5.  In May 1951 the applicant was seen by medical officials with a
complaint of a painful old fracture to the right toe.  On 19 July 1951 it
was concluded that the applicant's right toe condition caused the applicant
undue pain and hardship and that it interfered with his duties as an
infantryman.  The examining physician recommended the applicant be
administratively separated as a result of a pre-existing medical condition
which had progressively become worse while in the Army.  The ultimate
diagnosis was traumatic arthritis to the applicant's right big toe.

6.  On 21 July 1951 the applicant requested discharge from the Army noting
that he was physically disqualified for retention in the military because
of a physical disqualification which was determined to have existed prior
to the date of his entry into the service (EPTS).  A board of medical
officers convened on 31 July 1951 and concluded the applicant was not
physically qualified for retention because of traumatic arthritis of his
right big toe and that he should be discharged for the convenience of the
Government.

7.  The request for discharge was approved and on 12 September 1951 the
applicant was discharged under the provisions of Army Regulation 615-365.

8.  Army Regulation 615-365, then in effect, provides for the discharge of
enlisted personnel for the convenience of the government.  Among other
reasons, it provided for the separation of enlisted Soldiers with a
physical or mental defect or disability that elected discharge for the
convenience of the government when it had been established by proper
medical authority that the defect or disability existed prior to entrance
on active duty or was not aggravated while on active duty.

9.  Army Regulation 635-40, paragraph B-10, provides that hereditary,
congenital, and other EPTS (existed prior to service) conditions frequently
become unfitting through natural progression and should not be assigned a
disability rating unless service aggravated complications are clearly
documented or unless a Soldier has been permitted to continue on active
duty after such a condition, known to be progressive, was diagnosed or
should have been diagnosed.

10.  Army Regulation 635-40 states that Soldiers who are unfit by reason of
a physical disability neither incurred nor aggravated during his period of
service will be separated for physical disability without entitlement to
benefits.

11.  Army Regulation 635-40 also notes that when an EPTS condition becomes
symptomatic under the stress of active duty the condition may be unfitting
but has not been aggravated by active duty unless it has been permanently
worsened over and above natural progression.


DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no new medical evidence which shows that his
foot condition did not exist prior to his entry on active duty or that it
was aggravated by his military service.  In the absence of evidence to the
contrary, the applicant’s separation for failing to meet procurement
medical fitness standards is presumed to have been proper and accomplished
in compliance with applicable regulations.

2.  The fact that ultimately his pre-existing medical condition rendered
him incapable of continuing his military service is not evidence which
would warrant a finding that his toe condition was aggravated by his
military service.

3.  The Army has an obligation to release individuals whose medical
conditions might further aggravate the condition and/or ultimately
jeopardize the health of the individual, if permitted to remain under the
rigors of a military environment.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 September 1951; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 September 1954.  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

___PM __  __DG ___  ___RV __  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.




                                  _____ Patrick McGann________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002462                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|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.                      |                                        |


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