IN THE CASE OF:
BOARD DATE: 15 May 2008
DOCKET NUMBER: AR20080004192
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that paragraph "G" of Joint Message Form (JMF) number 04863, dated 21 February 1966, be changed.
2. The applicant states that paragraph "G" of JMF number 04863 shows
fractured left leg
is in error and should instead show "fractured right leg." The applicant continues that he did not realize there was an error with the message until he applied for Combat Related Special Compensation. It was only after the return of the unapproved application that he realized the error on JMF Number 04863.
3. The applicant provides a Standard Form (SF) 513 (Operation Report), dated
7 January 1991; and JMF Number, dated 21 February 1966.
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 applicant had prior enlisted service. On 10 February 1955, he was appointed as a Reserve Commissioned Officer of the Army at the rank of Second Lieutenant (2LT)/O-1 to serve as a member of the Army National Guard. He entered active duty on 11 March 1962.
3. The applicant arrived in Vietnam and was assigned to the 155th Aviation Company on or about 25 November 1965.
4. The applicant provided JMF Number 04863, dated 21 February 1966, which shows he was a pilot of a utility helicopter that lost power after takeoff and crashed causing injuries to his frontal lobe with depressed concussion, fractured left leg, and lacerations of left forearm.
5. The applicant was medically evacuated on 24 February 1966 to Clark Air Force Hospital, in the Philippines.
6. A Standard Form (SF) 88 (Report of Medical Examination), dated 9 April 1968, indicates that the applicant was examined for his annual flight physical. Item 37 (Lower Extremity) shows the entry "left leg, 1cm trophic ulcer from site of old fracture drainage from old scar (R) mid pretibial area. Full range of motion in leg function not impaired."
7. Item 73 (Notes and Significant or Interval History) of the applicant's SF
89 (Report of Medical History) indicated the applicant suffered a comminuted fracture of (L) tibia and fibula. Item 74 (Summary of Defects and Diagnoses) shows post-open comminuted fracture (R) tibia and fibula, healed with exception of trophic ulcer on pretibial surface.
8. On 31 March 1979, the applicant retired.
9. The applicant provided a SF 513, dated 7 January 1991, that shows surgery was preformed on his right leg for chronic osteomyelitis, right tibia with discharging sinus.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that paragraph "G" of JMF number 04863 should be changed from fractured left leg to read fractured right leg. He provided a SF 513, dated 7 January 1991, that shows surgery was performed on his right leg. However, his SF 88 and SF 89 show that he sustained an injury to his left leg from a helicopter accident on 21 February 1966.
2. The preponderance of evidence does not support his contention that he received his injury to his right leg. In the absence of military records which show the applicant sustained a right leg injury, there is an insufficient basis on which to change JMF Number 04863, dated 21 February 1966.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ __xx____ __xx____ 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.
_ _xxx______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080004192
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ABCMR Record of Proceedings (cont) AR20080004192
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