RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060007032


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Mr. David W. Tucker               |     |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 item 10 (If Retired Because of Disability…)
of his DA Form 199 (Physical Evaluation Board Proceedings) be corrected by
checking the block "is" which represents disability resulting from injury
or disease received in line of duty as a direct result of armed conflict or
caused by an instrumentality of war and incurred in line of duty during a
period of war as defined by law.

2.  The applicant states, in effect, that during the battle of Kontum his
helicopter was shot down by the North Vietnamese.  He states that he
received the award of the Purple Heart for injuries to include injuries to
his back.  He states that he believes the injury or disease of his spine
was caused as a result of him being a helicopter pilot in Vietnam.

3.  He states, in effect, in 2005 he submitted his application to retire
from his employer, but because item 10 of his DA Form 199 was not marked
"is", his employer did not consider him eligible for retirement.  He
understood that his military time would count towards his federal service
"based on a disability resulting from injury or disease received in line of
duty."  He further states that the injury had to occur in the line of duty
because of the trauma of piloting a helicopter for 1,000 hours and also
being shot down by the North Vietnamese soldiers in Vietnam during 1971 to
1972.

4.  The applicant provides:

      a.  a copy of his DD Form 214 (Armed Forces of the United States
Report of Transfer or Discharge); and

      b.  a copy of his Medical Evaluation Board (MEBD) Narrative Summary;
and

      c.  a copy of his DA Form 199.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 October 1973, the date he was retired and placed on the
Temporary Disability Retired List (TDRL).  The application submitted in
this case is dated 11 May 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's military records show that he was appointed as a second
lieutenant Reserve Commissioned Officer of the United States Army on  
31 March 1970.

4.  On 31 March 1972, the applicant was promoted to first lieutenant as a
Reserve Commissioned Officer of the United States Army.

5.  On 23 April 1973, the MEBD Narrative Summary shows that the applicant
had a history of intermittent low back and mild thoracic pain.  The
Narrative Summary shows that the applicant "noted that periodically,
especially after flying, his back would be stiff particularly in the
afternoons and at night.  He attributed this to the posture he assumed
while in a helicopter and sort of just shrugged it off for a while.  After
the symptoms persisted, he sought medical attention in September 1972."  At
that time x-rays were made and a diagnosis of ankylosing spondylitis was
made.

6.  On 30 April 1973, an MEBD found that after careful consideration of
clinical records, laboratory findings, health records, and medical
examination the applicant was medically unfit for further military service.
 He was diagnosed with ankylosing spondylitis which was incurred in the
line of duty.

7.  The MEBD referred the applicant to a Physical Evaluation Board (PEB).
On 27 July 1973, the PEB considered the applicant's disability condition as
"spine, limitation of motion of, dorsal, severe (med bd dg l)."  The PEB
found the applicant physically unfit and recommended a combined rating of
10 percent and that the applicant be separated from the service with
severance pay.  The PEB also made the recommended finding, as annotated in
Item 10 of the DD Form 199, that the applicant's retirement "is not based
on disability resulting from injury or disease received in line of duty as
a direct result of armed conflict or caused by an instrumentality of war
and incurred in line of duty during a period of war as defined by law."

8.  On 14 August 1973, the applicant nonconcurred with the findings,
demanded a formal hearing with personal appearance, and requested a
regularly appointed counsel to represent him.

9.  On 20 September 1973, the applicant stated during the formal hearing,
in effect, that his back started hurting him when he was in flight school.
When in
Vietnam, his back would really hurt when he returned from flying.  When
asked if his aircraft accident had any real bearing on his back, the
applicant answered "No."

10.  After the formal hearing, the board carefully considered all of the
available evidence in his case and found that the applicant was physically
unfit because of service connected disability, and recommended that he be
placed on the TDRL and rated 40 percent disabled.  The PEB also made the
finding that the applicant's retirement "is not based on disability
resulting from injury or disease received in line of duty as a direct
result of armed conflict or caused by an instrumentality of war and
incurred in line of duty during a period of war as defined by law."

11.  On 28 September 1973, a letter from the United States Army Physical
Evaluation Board, United States Army Physical Disability Agency (USAPDA)
shows that the applicant agreed with the recommendations from the
proceedings of the formal PEB.

12.  On 24 October 1973, the applicant was honorably released from active
duty and was transferred to the United States Army Reserve Control Group
(Retired), St. Louis, Missouri and placed on the TDRL with a disability
rating of 40 percent. He had completed a total of 3 years, 4 months, and 5
days of active service.

13.  On 24 February 1975, the TDRL examination found that the applicant had
"spine, ankylosis of, thoracic, favorable and spine, ankylosis of, lumbar,
severe, with complete fusion of sacroiliac joints bilaterally, severe.  His
condition has not stabilized to the point that a permanent degree of
severity can be determined."

14.  A letter from USAPDA, dated 11 March 1975, shows that the PEB
recommended that the applicant be retained on the TDRL with his disability
rating to remain unchanged with no appeal of the proceedings being
authorized.

15.  A letter from Walter Reed Army Medical Center, dated 28 December  
1976, shows that during the applicant's periodic physical examination, he
was considered medically unfit for further military service and recommended
for a PEB reevaluation.  The applicant agreed to the findings and
recommendations of the physician.

16.  On 13 January 1977, the PEB found the applicant to have "Ankylosis,
spondylitis: a) Spine, ankylosis, lumbar, favorable; b) Spine, ankylosis,
dorsal, favorable; and c) Spine, limitation of motion, cervical, moderate.
His condition

continued to preclude him from reasonable fulfillment of the purpose of his
employment in the Army.  The present rating of 60 percent more accurately
reflects the degree of severity of his condition.  The PEB considered his
condition to have stabilized for rating purposes and the proper disposition
to be permanent retirement."

17.  The PEB found the applicant physically unfit and recommended that he
be permanently retired from the service with a combined rating of 60
percent.  On  
21 January 1977, the applicant nonconcurred with the findings, demanded a
formal hearing with personal appearance, and requested a regularly
appointed counsel to represent him.  It is noted that item 10 (If Retired
Because of Disability…) of the DA Form 199 was unchecked.

18.  A letter from USAPDA, dated 27 January 1977, shows that the applicant
withdrew his demand for a formal hearing and requested that his case be
forwarded for review immediately.

19.  U.S. Army Military Personnel Center Orders Number D24-57, dated  
4 February 1977, shows that the applicant was removed from the TDRL on  
28 February 1977 and he was permanently retired as a first lieutenant.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement
or Separation) states, in pertinent part, that medical examiners and
adjudicative bodies will carefully evaluate each case.  They will recommend
removal of the Soldier's name from the TDRL as soon as the Soldier's
condition permits.  Placement on the TDRL confers no inherent right to
remain for the entire 5 year period allowed under Title 10, United States
Code, Section 1210.

21.  This same regulation states that if a member whose retirement or
separation from the service is based on disability resulting from injury or
disease received in line of duty as a direct result of armed conflict, or
caused by an instrumentality of war and incurred in line of duty during a
period of war, the block "is" will be checked in item 10 of the DA Form
199.  A disability may be considered a direct result of armed conflict if
(a) it was incurred while the member was engaged in armed conflict or an
operation or incident involving armed conflict or the likelihood of armed
conflict, or while interned as a prisoner-of-war or detained against his
will in the custody of a hostile or belligerent force or while escaping or
attempting to escape from such prisoner-of- war or detained status, and (b)
a direct causal relationship exists between the armed conflict or the
incident or operation and the disability.  A determination that a
disability resulted from injury

or disease received in line of duty as a direct result of armed conflict
will be appropriate only when it is also determined that the disability so
incurred in itself renders the member physically unfit.

22.  Spondylitis involves inflammation of one or more vertebrate.
Ankylosing spondylitis is a chronic inflammatory disease that affects the
joints between the vertebrate of the spine, and the joints between the
spine and the pelvis.  It eventually causes the affected vertebrate to fuse
or grow together.  The cause of ankylosing spondylitis is unknown, but
generic factors seem to play a role.  The disease starts with intermittent
hip and/or lower-back pain that is worse at night, in the morning, or after
inactivity.  (MEDLINE PLUS)

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the injury or disease of his spine was caused
as a result of him being a helicopter pilot in Vietnam.  He also makes
reference to him being wounded when he was shot down in Vietnam.

2.  However, the formal PEB proceedings show that the applicant testified
that he started having back pain while in flight school, which was before
his tour in Vietnam.  The applicant also stated that his aircraft accident
had no real bearing on his back pain.

3.  The two PEBs which considered the applicant while he was on active duty
marked the block indicating that the applicant's disability was not based
on disability resulting from injury or disease received in line of duty as
a direct result of armed conflict or caused by an instrumentality of war
and incurred in line of duty during a period of war as defined by law.
This finding is consistent with the applicant's sworn testimony concerning
the origin and progression of his condition and the accepted medical
principle that ankylosing spondylitis is caused by generic factors, not
injuries.

4.  In view of the foregoing, the preponderance of evidence shows that the
applicant's DA Form 199 dated 13 January 1977 should have had item  
10 marked as the earlier DA Forms 199, indicating that the applicant's
disability is not based on disability resulting from injury or disease
received in line of duty as a direct result of armed conflict or caused by
an instrumentality of war and incurred in line of duty during a period of
war as defined by law.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1977; therefore, the time
for
the applicant to file a request for correction of any error or injustice
expired on
27 February 1980.  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

___jcr ___  ___dwt__  ____rdb__  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.




                                  _________Jeffrey C. Redmann_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007032                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070118                                |
|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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