RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 July 2007
DOCKET NUMBER: AR20070000259
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.
Ms. Catherine C. Mitrano
Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. James E. Anderholm
Chairperson
Mr. Jose A. Martinez
Member
Mr. William F. Crain
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 an entry on a Standard Form 502 (Clinical Record/Narrative Summary), dated 13 November 1973, be removed.
2. The applicant states, in effect, that the entry, This 17 year old black male stated that while he was playing football approximately 1 year ago, he sustained a dislocation of his right elbow. on the Standard Form 502 is false.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty); a Standard Form 502, dated 13 November 1973; numerous service medical records; two pages of his DA Form 20 (Enlisted Qualification Record); a 2005 Progress Note; two affidavits; and a statement in support of his Department of Veterans Affairs claim.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 22 August 1974. The application submitted in this case is dated 20 December 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 applicants failure to timely file.
3. The applicant enlisted on 17 October 1973 and served as a pioneer.
4. The applicant provided a Standard Form 513 (Clinical Record/Consultation Sheet), dated 13 November 1973, which states, in pertinent part, that the patient stated that approximately 1 year previously while playing football he dislocated his right elbow.
5. The applicant also provided a Standard Form 502, dated 13 November 1973, which states, in pertinent part, that This 17 year old black male stated that while he was playing football approximately 1 year ago, he sustained a dislocation of his right elbow.
6. On 3 July 1974, a Physical Evaluation Board (PEB) found the applicant physically unfit for retention because of pain and limitation of motion of his right elbow due to an existed prior to service injury and recommended that he be separated from the military service without entitlement to disability benefits. On 23 July 1974, the applicant concurred with the PEB findings and recommendations and waived a formal hearing of his case.
7. On 22 August 1974, the applicant was honorably discharged by reason of physical disability existed prior to service.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends that the entry on the 13 November 1973 Standard Form 502 is false, there is no evidence, and the applicant has provided no evidence, which conclusively refutes the entry in question on the Standard Form 502. In the absence of compelling evidence to the contrary, it must be presumed that the medical authorities at the time in question were correct. It is also noted that he concurred with the PEBs findings that his elbow condition existed prior to service. Therefore, there is no basis to amend the 13 November 1973 Standard Form 502.
2. Records show the applicant should have discovered the alleged error now under consideration on 22 August 1974; therefore, the time for the applicant to file a request for correction of any error expired on 21 August 1977. 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
JA______ __JM____ __WC___ 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.
___James Anderholm____
CHAIRPERSON
INDEX
CASE ID
AR20070000259
SUFFIX
RECON
DATE BOARDED
20070712
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
124.0400
2.
3.
4.
5.
6.
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