IN THE CASE OF:
BOARD DATE: 4 December 2008
DOCKET NUMBER: AR20080011401
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, in effect, that his honorable discharge be changed to a medical retirement.
2. The applicant states, in effect, that he learned he should have been medically retired in lieu of being discharged.
3. The applicant provides a WD AGO 53-55 (Enlisted Record and Report of Separation Honorable Discharge), Department of Veterans Affairs Award Decision, and a copy of a webpage from the Army Times regarding disability retirement in support of his application.
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's records show he was inducted on 3 March 1943 and entered active service on 10 March 1943. He was awarded military occupational specialty 864 (Gun Crewman, Medium Artillery). The highest rank he attained while serving on active duty was private first class (PFC)/pay grade E-3.
3. The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. However, there are sufficient records available for a fair and impartial review in this case.
4. On 20 September 1945, the applicant was discharged with an honorable discharge under the provisions of Section I, Army Regulation 615-361 (Personnel Separations) with a Certificate of Disability for Discharge.
5. The WD AGO 53-55 issued confirms he completed a total of 2 years,
6 months, and 18 days of creditable active military service.
6. Department of Veterans Affairs rating decision, dated 28 March 2008, shows a 10 percent disabling rating for his left hip and 20 percent for his left foot due to residuals of shell fragment wounds.
7. Prior to October 1, 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, there were no provisions of law whereby an enlisted person with less than 20 years service could be retired from the Army for physical disability. Under the then existing law, compensation and pension for service-connected disabilities were under the jurisdiction of the Veterans Administration.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be changed to a medical retirement was carefully considered and determined to be without merit.
2. At the time of the applicant's discharge, there were no provisions of law authorizing separation of an enlisted person with less than 20 years service with a medical retirement.
3. 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 this requirement.
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) AR20080013198
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ABCMR Record of Proceedings (cont) AR20080011401
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