IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20090001573 


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 he be shown to have been released as a result of a service-incurred injury.

2.  The applicant states his right hand was injured in the line of duty and it was not a pre-existing condition.  He was bitten by a dog on base while on duty.  The Medical Evaluation Board (MEB) personnel told him he was going to be medically retired due to an injury received while on active duty.

3.  The applicant provides, in support of his application, copies of a DD Form 214WS (DD Form 214 Worksheet); a commander's Memorandum for MEB Board, Subject: P.T. Test, dated 11 March 2003; a commander's Memorandum for Record, Subject:  Commander's Performance Statement for SPC [applicant's name], dated 23 December 2002; a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 April 2003; a DD Form 2807 (Report of Medical History), dated January 2003; and a DD Form 2808 (Report of Medical Examination), dated 3 February 2003. 

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 to excuse an applicant’s failure to timely file within the 3-year 

statute of limitations if the Board 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 Board 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 totality of the applicant's iPERMS (interactive Personnel Electronic Records Management System) file consists of the same documents provided by the applicant plus the documents completed in concert with his two enlistment contracts.

3.  The applicant's service medical records, the MEB proceeding, and the Physical Evaluation Board (PEB) proceedings are not contained in the applicant's official records and therefore, are not available for the Board's review.

4.  The applicant entered active duty in the Regular Army (RA) on 7 August 2001. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 11 months and 15 days of prior active service; however, no other information related to this period of prior active service is available for the Board's review.

5.  The referenced Memorandum for Record, dated 23 December 2002, states that on 26 June 2002 the applicant suffered a severe dog attack.  The applicant was given a profile at that time and had only 30 percent use of his right forearm and hand.  This impairment rendered him ineffective to the unit.  It was recommended he be referred to an MEB.

6.  A DA Form 2173 was prepared on 7 April 2003, wherein it was determined that the applicant's injury to his wrist and forearm was incurred in the line of duty.

7.  A DD Form 2808 shows the applicant had decreased sensation to the median nerve with diagnoses of degenerative joint disease, carpal tunnel syndrome, hypoglycemia, onychomycosis (a fungal nail infection), and elevated cholesterol. The attending physician recommended he be referred to an MEB/PEB.

8.  While there is an indication that the applicant was processed through the MEB/PEB process, neither proceedings was available for review.  As such, there is no indication of what the specific findings of those boards were; what, if any, disability percentage the applicant was afforded; or what pre-existing condition may have been found that precluded his continuation on active duty.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged by reason of "disability, existed prior to service, PEB."

10.  Army Regulation 635-40 provides the guidance for convening MEB’s and PEB’s.  In pertinent part it states:

	a.  in order to be eligible to receive retirement and severance pay benefits the disability must have been incurred or aggravated as the proximate cause of performing active duty; and

	b.  a PEB may decide that a Soldier's physical defect existed prior to service, or inactive duty for training, or resulted from a non-service connected condition (not in line of duty).  If so, the board must further consider whether military service aggravated the unfitting defect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his right hand was injured in the line of duty and was not a pre-existing condition.  He further states the MEB personnel told him he was going to be medically retired due to this injury received while on active duty.

2.  The record documents that while on active duty he received a serious injury to his right wrist on or about 26 June 2002.  This injury was determined to have been incurred in the line of duty. 

3.  If the applicant was properly afforded an MEB and PEB and found that the right wrist injury warranted his discharge then the DD Form 214 should be corrected to show that he was released from active duty due to a service-incurred disability.

4.  However, without access to the applicant's service medical records or the MEB and/or PEB proceedings to validate the fact that this was the condition that terminated his service, the presumption of administrative regularity must be applied and the applicant's request be denied.  

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.  There is no evidence of record and the applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis for granting the applicant's requested relief.

6.  The applicant is advised that if he has or can obtain copies of the MEB/PEB proceedings to show that the service-incurred wrist condition was the reason for his discharge, he can request reconsideration to this Board with the additional information.  The reconsideration request should be completed within one year of the date of this decisional document.

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.
Board Record of Proceedings (cont)                                         AR20090001573



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Board Record of Proceedings (cont)                                         AR20090001573



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