RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20070001944 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Jonh N. Slone

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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, correction of his military records to show that he was injured while serving in the European Theater of Operations.

2.  The applicant states that on or about 1 May 1945, he was injured when his military jeep hit a mine.  He and four other Soldiers were in the vehicle.  The applicant states that they were thrown out of the vehicle and he was apparently knocked unconscious.  He suffered a broken collarbone and head and back injuries.  He was in a field hospital for 2 weeks.  Somehow, he developed hypertension as a result of this incident and is still receiving treatment for this ailment.  He further states that he is unable to straighten his toes and has constant pain in his back and legs.  He is unable to work because of his back condition.  He has tried to file a disability claim but has been denied because there is no record of his accident.  He says that he has requested his military medical records from every possible source and has even contacted his congressman for assistance.  

3.  The applicant provides a copy of his Enlisted Record and Report of Separation Honorable Discharge (WD AGO Form 53-55).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 13 February 1946, the date of his discharge.  The application submitted in this case is dated 24 January 2007.

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 are not available for review.  A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents available to conduct a fair and impartial review of this specific request. 

4.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army on 23 April 1944.  His military occupational specialty is listed as 522 (Duty Soldier).  He served in the European Theater of Operations from 23 February to 
6 August 1945.  On 13 February 1946, he was honorably discharged.  He had attained the rank of private first class and had completed 1 year, 3 months, and 13 days of creditable active service.

5.  Item 33 (Decorations and Citations) of the applicant’s WD AGO Form 53-55, lists the American Theater Ribbon, European, African, Middle-Eastern Service Medal, and the World War II Victory Medal.  It does not show the Purple Heart.

6.  Item 34 (Wounds Received in Action) of the applicant’s WD AGO Form 53-55, indicates that he did not receive any wounds as a result of enemy action.

7.  Information from the hospital admission cards, as created by The Office of the Surgeon General, Department of the Army, for 1945, shows that the applicant was admitted for tonsillitis at Fort George G. Meade, Maryland, during the period from December 1944 to January 1945; and for acute nasopharyngitis at Fort Francis E. Warren, Wyoming, during November 1945.  There is no available evidence showing that the applicant received medical treatment while in the European Theater of Operations.  

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence of record, nor has the applicant provided any substantiating evidence to show that the proximate cause of his current medical disabilities was an exploding land mine during his service in the European Theater of Operations in 1945.

2.  Therefore, the applicant’s request should not be granted.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 February 1946, the date of his separation from active duty.  However, the ABCMR was not established until 
2 January 1947.  As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950.  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

__LMD__  ___DKH _  __JNS___  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.




___    John N. Slone______
          CHAIRPERSON




INDEX

CASE ID
AR20070001944
SUFFIX

RECON
 
DATE BOARDED
20070717 
TYPE OF DISCHARGE

DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
122.0100
2.

3.

4.

5.

6.