IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080011188 


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 his previous request that paragraph "G" of Joint Message Form (JMF) number 04863, dated 25 February 1966, be changed to show that he suffered a fracture to his right leg instead of his left leg.

2.  The applicant states that paragraph "G" of JMF number 04863 shows that he fractured his left leg and that he did not realize there was an error in the message until he applied for Combat-Related Special Compensation (CRSC), that was disapproved.

3.  The applicant provides, in support of his application, a copy of a VA Form
21-4138 (Department of Veterans Affairs Statement in Support of Claim), dated 25 June 2008; a copy of the previous ABCMR Record of Proceedings, dated 15 May 2008; and a copy of a picture purportedly showing him shaking hands with former President Johnson.

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 AR20080004192, on 15 May 2008.

2.  The applicant provided new evidence that was not previously considered and that will be considered at this time.

3.  After completing a period of prior enlisted service, the applicant accepted an appointment as a Reserve commissioned officer in the Army, in the rank of second lieutenant (2LT)/O-1, on 10 February 1955.  He entered on active duty as a member of the Army National Guard on 11 March 1962.  He was transferred to Vietnam on or about 25 November 1965 and he was assigned to the 155th Aviation Company.

4.  The applicant was a pilot in Vietnam when he was evacuated from the Theater in February 1966 for injuries sustained in an aircraft accident.  

5.  The evidence of record shows that on 25 February 1966, JMF number 04863 was published regarding wounds received by the applicant while he was in Vietnam.  The JMF reads, "Wounds, missile frontal lobe with depressed concussion, fractured left leg and lacerations of left forearm."  According to the JMF, the wounds were sustained after his aircraft crashed when it lost power during takeoff.  The JMF also reads that he was medically evacuated to Clark Air Force Hospital, Philippines on 24 February 1966.

6.  The date reflected on the Disposition Form (DA Form 2496) is barely legible.  However, it appears that on 30 August 1966, a DA Form 2496 was prepared by the Assist Chief, Orthopedic (Flight Surgeon) requesting that action be taken to initiate flying suspension orders for the applicant.  The DA Form 2496 reflects that he sustained an open fracture of the skull and a fracture of tibia.  The DA Form 2496 also reflects a "IA" dated of 21 February 1966 and it states that the applicant's estimated length of physical disqualification was over 6 months.

7.  A Standard Form (SF) 88 (Report of Medical Examination) that was prepared for the applicant during an annual Class II Flight Physical, dated 9 April 1968 reads, "left leg, 1cm trophic ulcer from site of old fracture drainage from old scar (R) mid pretibial.  Full range of motion in (L) leg function not impaired."  

8.  Item number 73 (Notes and Significant or Interval History) on the applicant
SF 89 (Report of Medical History) shows that the applicant suffered a comminuted fracture of the (L) tibia and fibula.  Item number 74 (Summary of Defects and Diagnoses) on the same form shows that he had a post-open comminuted fracture (R) tibia and fibula, healed with exception of trophic ulcer on pretibial surface.

9.  The applicant retired on 31 March 1979.




10.  An SF 516 (Medical Record - Operation Report), dated 7 January 1991, shows that the applicant had surgery on 4 January 1991 and that the operative diagnosis was chronic osteomyelitis, right tibia, with discharging sinus.

11.  On 19 July 2007, the CRSC Division awarded the applicant a 10 percent Combat-Related Disability Rating for disfigurement of his head, face, or neck (forehead), and a 0 percent Combat-Related Disability Rating for impaired hearing (ears), with an effective date of June 2003.  However, he was informed that combat-related disabilities could not be verified for his right ankle, right leg, and right tibia.

12.  A copy of the applicant's request for reconsideration is not on file.  However, on 23 January 2008, the applicant was notified by the CRSC Division that his request for reconsideration of his Combat-Related Disability Rating was denied.

13.  On 28 January 2008, the applicant submitted an application to this Board requesting that paragraph "G" JMF number 04863 be changed to show that he suffered a fracture to his right leg instead of his left leg.  His request was denied on 15 May 2008.

14.  In his request for reconsideration, the applicant submits a picture of himself shaking hands with former President Johnson, which shows his right leg in a cast. 

15.  During the review of the applicant's case, an Advisory Opinion (copy attached) was obtained from the Medical Advisor, Army Review Boards Agency.  The Medical Advisor concluded that, based on a preponderance of the evidence, in 1966 he sustained an open comminuted fracture of the right tibia, among other injuries, and that the injury was caused by a helicopter mishap which was combat related.  Specifically:

	a)  a Report of Medical Examination (RME) (Class II Flight) dated  April 9, 1968 notes under the heading of "left leg" a "1 cm trophic ulcer from site of old fracture-drainage from old scar (R) mid pretibial area."  This statement is confusing.  In the "notes and interval history" section a history of "comminuted fracture of (L) tibia and fibula" is given; 

	b)  immediately contradicted in the summary, which describes it as "Post-open comminuted fracture (R) tibia and fibula."  This note also directly links this right leg fracture to the trophic ulcer noted above;



	c)  an RME dated December 8, 1976 documents a two inch depressed scar on the front of his right leg, but no left leg scar is noted; 

	d)  an RME (Retirement) dated January 24, 1979 documents a scar on the (R) tibia attributed to active osteomyelitis.  During his examination he indicated that he attempted to obtain commercial life insurance and that the premiums were increased because of osteomyelitis of his right tibia;

	e)  a photograph of himself, presumably taken at Walter Reed Army Medical Center, shaking hands with President Johnson, and he has a cast on his right leg; and

	d)  an operation report from the Veterans Affairs (VA) Medical Center dated January 4, 1991 describes "saucerization" of the upper tibial cavity of the right leg for chronic osteomyelitis of the right tibia.  

16.  The Medical Advisor recommended that relief be granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that paragraph "G" of JMF number 04863 should be changed to show that he fractured his right leg instead of his left leg.

2.  While there is medical documentation in his records that shows that it was his left leg that was fractured in February 1966, the preponderance of the evidence indicates that it was his right leg that was fractured in February 1966.

3.  His medical records contain multiple references to a history of and/or osteomyelitis of the right tibia.  There is also mention of drainage from an old scar in the right pretibial area and a "tropic" lesion over the right tibia.  His right tibial fracture is referred to multiple time in his medical records.  There is only a single reference in his medical records to a fracture of his left leg and it is immediately contradicted in the same record and documented to be the right leg. 

4.  Additionally, the picture that the applicant has submitted in support of his request for reconsideration shows him shaking hands with President Johnson and he has a cast on his right leg.  The SF 516 shows he had surgery on his right leg on 4 January 1991.  Therefore, it is reasonable to presume that it was his right leg that was fractured in February 1966 and the appropriate records should be corrected to reflect this information. 


5.  In view of the foregoing, it would now be in the interest of justice to correct the applicant's records as recommended below. 

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20080004192, dated 15 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a)  amending paragraph 2b on the Disposition Form (DA Form 2496) to read that he had a fracture of the right tibia; and
   
   b)  preparing an appropriate document to correct paragraph "G" of Joint Message Form number 04863 to show that he sustained a fractured right leg instead of a fractured left leg. 




      _______ _ 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)                                         AR20080011188





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ABCMR Record of Proceedings (cont)                                         AR20080011188



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