IN THE CASE OF:
BOARD DATE: 3 March 2009
DOCKET NUMBER: AR20080018151
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 that his records be corrected to show he sustained an injury while on active duty.
2. The applicant states he had polio as a child but pre-service surgery completely corrected this problem. The injury that resulted in his release from active duty occurred as a result of unloading lumber during a training exercise.
3. The applicant reports that at age 2 he contracted paralytic polio. At age 12 he underwent surgical intervention to correct the orthopedic problems that resulted from the polio. He played both football and baseball in high school and soccer in college. At the time he enlisted he underwent a thorough medical examination and was found fit for enlistment.
4. The applicant provides a personal statement and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 enlisted in the Regular Army on 31 July 1961. He completed basic training and was assigned to Fort Gordon for training as a military policeman.
3. On 6 November 1961, the applicant signed a form letter wherein he requested discharge for a physical disability that existed prior to 31 July 1961, the date of his enlistment.
4. The available record includes a copy of a coversheet indicating that a Medical Evaluation Board (MEB) Proceeding was approved on 22 November 1961. Attempts to locate the actual MEB proceedings have met with negative results.
5. The applicant was honorably discharged on 24 November 1961 under the provisions of Army Regulation 635-40A (Physical Evaluation For Retention, Retirement, Or Separation), paragraph 6, for a physical disability that existed prior to service. He had 3 months and 24 days of creditable service.
6. The applicant's service medical records are not associated with the available file.
7. Army Regulation 15185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicants request for the correction of a military record. In pertinent part, it states 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 states he had polio as a child but pre-service surgery completely corrected this problem. The injury that resulted in his release from active duty occurred as a result of unloading lumber during a training exercise.
2. The applicant's service medical records are not associated with the available file. It is probable that they are either nonexistent or on permanent loan to the Department of Veterans Affairs and are not available for review. Without the applicant's service medical records and/or the MEB proceedings, it is impossible to determine if the condition that resulted in his discharge was a preexisting condition, an injury that aggravated a preexisting condition, or an injury that was incurred independent of any preexisting condition.
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.
4. Without the medical records the Board must apply the presumption of administrative regularity in the processing of the applicant's discharge. There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.
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) AR20080018151
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ABCMR Record of Proceedings (cont) AR20080018151
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