IN THE CASE OF:
BOARD DATE: 26 August 2008
DOCKET NUMBER: AR20080008682
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 correction of his military records to show that he served on active duty for a period of 90 days.
2. The applicant states that he told the Army about his asthma when he was drafted but they took him anyway. He was released 7 days short of 90 days and was denied Department of Veterans Affairs (VA) benefits.
3. The applicant provides a copy of his Certification of Military Service (NA Form 13038).
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. On 17 July 1969, the applicant was inducted into the Army of the United States for 2 years. He was subsequently assigned to Fort Polk, Louisiana, for his initial training.
3. The applicants medical records were not available for review.
4. Special Orders Number 245, paragraph 059, Fort Polk, Louisiana, dated
7 October 1969, directed that the applicant be discharged due to medical reasons, effective 9 October 1969, and issued an Honorable Discharge Certificate.
5. On 9 October 1969, the applicant was accordingly discharged. He had completed 2 months and 23 days of creditable active duty (87 days).
DISCUSSION AND CONCLUSIONS:
1. The available evidence clearly shows the applicant was inducted into the Army of the United States and subsequently discharged after 87 days of active duty service due to a medical condition.
2. There is no evidence showing the applicant had served on active duty prior to 17 July 1969 or after 9 October 1969.
3. There are no regulatory provisions for increasing an individuals active duty service in order to obtain VA benefits.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant's 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
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) AR20070016793
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080008682
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