IN THE CASE OF:	

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080014043 


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 of 5 October 1944 be changed to a medical discharge and that he be compensated accordingly. 

2.  The applicant states, in effect, that he was diagnosed with an abnormal heart beat and was determined not to be qualified for overseas service.  He also claims that based on this condition, he was recommended for discharge based on inability to perform his duties.  However, his unit commander reduced him in rank and had him discharged for misconduct.  

3.  The applicant provides the following documents in support of his application:  self-authored letters; Headquarters the Infantry School, Special Orders Number 138, dated 8 June 1943; Report of Separation (WD AGO Form 53); Armed Forces of the United States Report of Transfer or Discharge (DD Form 214); Office of The Adjutant General (OTAG) letters; and his Honorable Discharge Certificate.

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 applicant’s 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 applicant’s 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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53, DD Form 214, and OTAG letters provided by the applicant. 

3.  The applicant's reconstructed record shows he was inducted into the Army of the United States (AUS) on 9 December 1942, and that he was awarded and served in military occupational specialty (MOS) 014 (Auto Mechanic). 

4.  The NPRC file is void of any medical treatment records indicating the applicant suffered from a disqualifying medical or mental condition at anytime during his tenure on active duty that would have rendered him unfit for further service. 

5.  The applicant's WD AGO Form 53 shows he was initially discharged under the provisions of Army Regulation 615-368, by reason of traits of character rendering retention in service undesirable and disqualified in character for service through his own misconduct, and that he received an undesirable discharge (UD) on 5 October 1944.  

6.  On 10 August 1945, an OTAG letter informed the applicant his original UD and associated documents related to his discharge had been received, canceled, and placed on file.  He was further informed that an honorable discharge (HD) certificate from the AUS (WD AGO Form 0528) had been prepared in accordance with the directive of the Secretary of War and was included for his use. 

7.  On 3 May 1963, an OTAG letter informed the applicant that as a result of his request, an HD certificate (DD Form 256A) and a Report of Transfer or Discharge (DD Form 214) had been issued that removed a statement indicating he was not eligible for reenlistment.  He was further advised to destroy the previously issued separation documents and discharge certificates. 
8.  On 7 March 1967, The Adjutant General (TAG) replied to a letter from the applicant to the President, and provided the applicant an explanation of the facts and circumstances surrounding his discharge processing and the subsequent reviews by Department of the Army (DA).  This explanation informed the applicant that subsequent to his discharge for undesirable habits and traits, it was determined that he did not have undesirable habits and traits, but that he instead lacked the required degree of adaptability, not due to his own misconduct.  The applicant was also informed that many individuals were unable to adjust to the military life and were discharged for unsuitability or lack of adaptability.  Although these persons are normally separated under honorable conditions, they are not eligible for further military service, and the applicant appropriately was issued an HD certificate on 10 August 1945.  The TAG also informed the applicant that the statement regarding his ineligibility for further service, although accurate, was removed from his separation document in 1963, based on the applicant's claim that it was causing him difficulty in civilian life.  

9.  Public Law 351 (Career Compensation Act of 1949), 81st Congress, provided for the first time that, effective 1 October 1949, an enlisted person with less than 20 years service could be retired from the Army for physical disability.  

10.  Title 38, U. S. Code, sections 1110 and 1131, permits the Department of Veterans Affairs (VA, previously known as the Veterans Administration) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be changed to a medical discharge and he should be compensated accordingly was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  Prior to 1 October 1949, on which date the Career Compensation Action of 1949 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 VA.  Therefore, he is not entitled to a medical retirement or other disability compensation by the Army.  

3.  The applicant is advised that any request for medical treatment or compensation for service-connected medical conditions should be submitted to the VA, which is the appropriate agency for these matters.  

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 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)                                         AR20080014043



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ABCMR Record of Proceedings (cont)                                         AR20080014043



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