IN THE CASE OF:
BOARD DATE: 18 September 2008
DOCKET NUMBER: AR20080010689
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 reconsideration of previous request for correction of his records to show that his Department of Veterans Affairs (VA) disability was cause by exposure to Agent Orange and award of Combat-Related Special Compensation (CRSC) based on this correction.
2. The applicant states that the letter provided by a nurse practitioner supports his claims that his disabilities were as a result of Agent Orange exposure.
3. The applicant provides a one-page statement from a nurse practitioner in support of this application.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070006542 on 2 October 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 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.
3. The applicant provided one-page statement from a nurse practitioner which was not previously considered by the Board. This is new evidence which warrants consideration.
4. Records show that on 22 February 2007, the U.S. Army Physical Disability Agency (USAPDA) Combat-Related Special Compensation (CRSC) Branch denied the applicants request for reconsideration of his previous request for CRSC. Specifically, the USAPDA informed the applicant that there was no new official documentary evidence to verify that his service-related illness/injuries were combat-related.
5. The previous ABCMR case shows that the applicant retired after completing 20 years, 2 months, and 29 days of honorable service.
6. Evidence of record shows that the applicant was entered on the Agent Orange Registry which annotated his past medical history. There is no evidence in the registry that shows the applicant sustained injuries while in a combat situation.
7. The applicant provided a letter from a nurse practitioner who states that during the applicant's service in the Republic of Vietnam he was exposed to Agent Orange and other chemicals. The nurse practitioner states that it is most likely than not that the applicant's medical condition was caused by Agent Orange and other chemical/herbicides related to his tour of duty in the Republic of Vietnam.
DISCUSSION AND CONCLUSIONS:
1. The applicant's new evidence was carefully considered. Unfortunately, the letter provided by the nurse practitioner is insufficient evidence to determine that the applicant's medical conditions were sustained as a result of exposure to Agent Orange and/or other chemicals.
2. As stated in the previous case, the applicant's military medical records do not contain sufficient evidence showing that his current medical conditions were as a result of exposure to Agent Orange and/or other chemicals.
3. Absent evidence which clearly shows that the applicant's medical conditions were incurred as a direct result of exposure to Agent Orange and/or other chemicals, there is no basis to grant the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ 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 to amend the decision of the ABCMR set forth in Docket Number AR20070006542, dated 2 October 2007.
______________________
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.
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