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ARMY | BCMR | CY2006 | 20060017197
Original file (20060017197.txt) Auto-classification: Denied


RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060017197 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Crain

Chairperson

Mr. Donald Lewy

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, that a Standard Form 88 (Report of Medical Examination), dated 3 November 1968, be removed from his military records. 

2.  The applicant states, in effect, that there was no physical examination on 
3 November 1968.  He states that they did not take his blood pressure or look into his ears, eyes, or check reflexes.  He points out that item 39 (Identifying Body Marks, Scars, Tattoos) on this form states that he has a tattoo on his left forearm; however, he does not have a tattoo on his left or right forearm.

3.  The applicant contends that he arrived at Fort Lewis, Washington with 100 plus returnees for expiration term of service (ETS) processing on 1 November 1968.  He states they were sent to the dispensary the next day, instructed to fill out a form, and that they were asked for a urine specimen.  They were told if they had any medical concerns to talk to the specialist four or specialist five in charge.  He states that he asked the specialist four for medical treatment for the ringing in his ears and for a frequent dull pain in his side.  The specialist four told him that if he wanted medical treatment that he would be extended past his ETS for probably 2 to 3 weeks and that he doubted that they could do anything for the applicant.  The applicant states that he then went to the orderly room, signed out, and took a cab to the airport and flew home.  He further states that he never went near the dispensary on 3 November 1968.        

4.  The applicant provides a copy of a Standard Form 88, dated 3 November 1968 and a letter, dated 30 November 2006, from a Member of Congress.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 3 November 1968.  The application submitted in this case is dated 
24 November 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 enlisted on 21 October 1965, served a combat construction specialist in Germany and Vietnam, and was released from active duty on 
3 November 1968.

4.  The applicant provided a copy of a Standard Form 88, dated 3 November 1968.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that there was no physical examination on 
3 November 1968 was noted.  However, in the absence of definitive evidence to the contrary, it must be presumed that a physical separation examination was performed on 3 November 1968.  His contention that he does not have a tattoo on his left forearm is not evidence to the contrary since a tattoo can be removed. Regrettably, the passage of almost 40 years makes it difficult to determine what actually occurred during the applicant’s separation physical.  As a result, there is an insufficient basis for granting the applicant's request.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 3 November 1968; therefore, the time for the applicant to file a request for correction of any error expired on 2 November 1971.  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

WC____  __DL____  __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.


  William Crain_______
          CHAIRPERSON




INDEX

CASE ID
AR20060017197
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
134.0000
2.

3.

4.

5.

6.


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