IN THE CASE OF:	  

		BOARD DATE:	  	  5 March 2009

		DOCKET NUMBER:  AR20080016675 


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, correction of his records to show he incurred service-connected injuries.

2.  The applicant states, in effect, he has injuries to his face and ears that he received when he went to boot camp and fired 105mm howitzers and .50 caliber machineguns while assigned to the 115th Field Artillery, Fort McClellan, Alabama.  He adds the Department of Veterans Affairs (VA) never considered his military service from his first enlistment (from 26 March 1953 to 8 October 1956) that caused some of his disabilities.

3.  The applicant provides no additional documentary evidence in support of his request.

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 personnel records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center 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.

3.  The applicant’s available military service records show he enlisted in the Army National Guard of the United States (ARNGUS) and Tennessee Army National Guard (TNARNG) for a period of 3 years on 26 March 1953.  

4.  The applicant’s records contain a copy of a DA Form 20 (Qualification Record - Enlisted Personnel).  Item 36 (Record of Current Assignment), in pertinent part, shows the applicant’s principal duty assignment was assistant gunner in military occupational specialty 3844 while assigned to Battery B, 566th Field Artillery Battalion from 26 March 1953 to 18 June 1955.  Item 39 (Qualification in Arms) shows the applicant qualified expert with the M-1 rifle on 23 May 1953 and qualified second class with the 105mm howitzer on 11 August 1954.

5.  The applicant’s records contain a copy of a DD Form 230 (Service Record).  Section 3 (Organizations to Which Assigned and Attached) shows he was assigned to Battery B, 115th Field Artillery Battalion, TNARNG, Shelbyville, Tennessee from 26 March 1953 to 18 January 1955.  This section also shows he was assigned to the 5106th U.S. Army Reserve (USAR) Control Group (Reinforcement), Detroit, Michigan on 19 January 1955.  Section 14 (Remarks), in pertinent part, shows the applicant was honorably discharged on 
8 October 1956.

6.  The applicant’s records contain a copy of Military Department of Tennessee, Office of The Adjutant General, National Guard Section, Nashville, Tennessee, Special Orders Number 6, dated 10 January 1955.  Paragraph 14 of the orders show the applicant was honorably discharged from the TNARNG effective         18 January 1955 and transferred to the USAR effective 19 January 1955.  The authority cited was National Guard Regulation 25-3, paragraph 6e, and the Armed Forces Reserve Act of 1952, section 707.




7.  The applicant’s records also contain a copy of his NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of the United States and the Army National Guard of Tennessee) that shows the applicant enlisted on 26 March 1953 and was honorably discharged on 18 January 1955.  Item 33 (Reason and Authority for Discharge) contains the entry “[r]emoval fr[om] State” and cites Military Department of Tennessee, Office of The Adjutant General, National Guard Section, Nashville, Tennessee, Special Orders Number 6, paragraph 14, dated 10 January 1955.  At the time he had completed 1 year, 9 months, and 22 days of total service this period.

8.  The applicant’s available military service records contain a copy of Headquarters, VI United States Army Corps (Reserve), Fort Benjamin Harrison, Indianapolis, Indiana, letter, dated 6 November 1958, subject:  Discharge from the Army Reserve with Headquarters, 2nd Organizational Maintenance Squadron, 2nd Bombardment Wing Medium Jet, Hunter Air Force Base, Georgia, dated 8 December 1958.  This document shows, in pertinent part, information had been received that the applicant (then, an enlisted member of the USAR) was serving in the U.S. Air Force (USAF) and that the Administrative Officer (USAF) confirmed the applicant enlisted in the USAF on 9 October 1956 at Nashville, Tennessee.

9.  The applicant's available military service records are absent any evidence that he sustained injuries to his face and ears.  There is also no evidence the applicant was referred to a Medical Evaluation Board or Physical Evaluation Board during the period of military service under review.

10.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

11.  As a matter of information, Title 38, U.S. Code, sections 1110 and 1131, permits the Department of VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the applicant’s separation from the Army.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  In addition, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.   Moreover, the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military service records should be corrected to show he incurred service-connected injuries to his face and ears during the period of service from 26 March 1953 to 8 October 1956.

2.  The evidence of record shows the applicant enlisted in the ARNGUS and TNARNG on 26 March 1953; he was honorably discharged on 18 January 1955 based on the Armed Forces Reserve Act of 1952, section 707; and transferred to the USAR effective 19 January 1955.  The evidence of record also shows the applicant was honorably discharged from the USAR effective 8 October 1956 when it was discovered he had enlisted in the USAF effective 9 October 1956.

3.  There is no evidence of record, and the applicant provides insufficient evidence, that shows the applicant incurred service-connected injuries to his face and ears during the period of service under review.  There is also no evidence that he was found unfit because of a physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, the applicant is not entitled to correction of his records to show he incurred service connected injuries during the period of military service under review.

5.  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)                                         AR20080016675



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ABCMR Record of Proceedings (cont)                                         AR20080016675



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