RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 22 April 2008
DOCKET NUMBER: AR20070017976
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 his DD Form 214 (Report of Separation from the Armed Forces of the United States), Item 8 (Reason and Authority for Separation) be corrected to read SR 615-360-40 instead of SR 600-450-10.
2. The applicant states the recommendation by a military physician who wrote his clinical abstract, that he be separated from active duty under the provisions of SR 615-360-40, should have been accepted.
3. The applicant provides a WD AGO Form 8-118 (Disposition Board Proceedings for EM), a clinical abstract dated 7 January 1952, and his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records could not be located, and are presumed to have been destroyed at the fire at the records repository at St. Louis, Missouri, in 1973. The information contained herein was derived from documents submitted by the applicant himself.
3. The applicant was inducted and entered active duty on 13 December 1950. He served as an intermediate speed radio operator and was promoted to corporal.
4. On 7 January 1952, a Clinical Abstract was written. In that abstract it was stated This 24 year old white male gives a history of first noting eye difficulty in 1945 and was admitted to McMillan Hospital in St. Louis, MO., where he was treated over a two-week period for chorioretinitis . . . he was admitted to the hospital for the same condition for two-week periods on two (2) other occasions, once in 1946 and again in 1948 . . . date of induction into the service was
13 December 1950 with no history of previous service and no specific change in his condition while in the service. The physician stated that the applicants eye did not meet minimum requirements for retention in the service and recommended that he be separated from the service under the provisions of SR 615-360-40.
5. On the same day, a Disposition Board convened which determined that the applicant had chorioretinitis (inflammation of the choriod and retina of eyes), and that the condition was not incurred in line of duty because it existed prior to service. The Disposition Board recommended that the applicant be discharged from the service under the provisions of SR 600-450-10.
6. The applicant was honorably discharged on 29 May 1952 under the provisions of SR 600-450-10.
7. SR 615-360-40, Enlisted Personnel, Change 1, dated 23 February 1951, thats that the following individuals who are physically or mentally disabled for military service will be processed in accordance with the provisions of SR 600-450-10:
(1) Those whose physical or mental defects did not exist, or cannot be clearly determined to have existed, prior to entry on their present period of active service.
(2) Those whose physical or mental defects were incurred in line of duty during prior active service.
(3) Those whose physical or mental defects may have been aggravated by active service.
8. SR 615-450-10, Evaluation and Separation for Physical Disability Which Existed Prior to Entry on Active Service, dated 4 January 1952, stated that the regulation superseded SR 615-360-40.
DISCUSSION AND CONCLUSIONS:
1. SR 615-360-40 was superseded by SR 615-450-10 on 4 January 1952. Since the applicant was discharged on 29 May 1952, he could not have been discharged under the authority of SR 615-360-40. It no longer existed on the date the applicant was discharged.
2. As such, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__x __ __x__ __x__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
_____x_____
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070017976
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA 22202-4508
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