IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090002506 


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 military records to show that he was discharged due to a physical disability that was aggravated by his military service. 

2.  The applicant states, in effect, that he suffers from a skin disease known as lichen planus and xerosis and that his military service aggravated his condition.   

3.  The applicant provides, in support of his application, copies of two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); Clinical Records, dated 3 December 1969 and in November 1970; a letter from the Department of Veterans Affairs (VA), dated 30 January 1990; a letter his doctor wrote to the VA, dated 7 February 2003; and an email communication between the VA and the applicant, dated between October and November 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 (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.  On 13 February 1969, the applicant was inducted into the Army of the United States for 2 years.  On 18 February 1969, he elected to enlist in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 68G (Airframe Repairman).

3.  The applicant's service medical records, to include both his entrance and separation medical examinations, are not available for review.

4.  On 23 July 1969, the applicant departed Fort Eustis, Virginia for duty in the Republic of Vietnam.

5.  On 30 August 1969, the applicant was assigned duty as an airframe repairman with the 608th Transportation Company in the Republic of Vietnam. 

6.  On 29 October 1969, the applicant left the Republic of Vietnam and was hospitalized.  

7.  On 3 December 1969, at the Army Hospital, Camp Zama, Japan, the applicant was diagnosed with "lichen planus legs hypertropic."  This condition was found to be in the line of duty, existed prior to service (EPTS), and was aggravated by service.

8.  On 23 January 1970, the applicant was assigned duty at Hunter Army Airfield, Georgia.

9.  On 12 November 1970, a narrative summary of the applicant's medical history indicates that he had developed a small area of dermatitis on his legs about 3 1/2 years prior to entry into active duty.  At the time of his enlistment he was not too symptomatic and used only home remedies [to treat his condition].  While in the Republic of Vietnam, his dermatitis in the legs flared up.  He was seen by a dermatologist at the United States Air Force Hospital in Cam Ranh Bay where biopsies confirmed his condition as lichen planus.  Treatment was started but his condition became progressively worse with increased itching.  He was medically evacuated with the recommendation that he be separated from the service for the sake of the Army.  At the Army Hospital, Hunter Army Airfield, the applicant continued to receive treatment.  By July 1970, the applicant had suffered from severe exacerbation of his lichen planus.  It was noted that, on strenuous physical activity or when in areas of high humidity, the patient had acute flare-ups of dermatitis.  Accordingly, he carried a profile limiting the amount of strenuous labor.  Because of his recurrent flare-ups of the dermatitis and because of the fact that he had lichen planus before entering the service, it was felt he should be given a medical discharge.  In August 1970, the applicant underwent a psychiatric consultation.  The applicant was resistant and hostile to psychotherapy.  No significant psychopathology was uncovered but valium was recommended during episodes of severe dermatitis.   The final diagnosis was lichen planus, hypertropic type, EPTS. 

10.  On 18 November 1970, the applicant requested discharge due to physical disability.  He was informed that, based upon the findings and recommendations of a medical board, he was considered to be unfit for retention in the military service by reason of physical disability which existed prior to his enlistment and which was neither incident to nor aggravated by his military service.

11.  On 20 November 1970, the applicant signed page 2 of DA Form 8-118 (Medical Board Proceedings) indicating that he did not want to remain on active duty and that he concurred with the findings and recommendations of the board.  Page 1 of this document is not available for review.

12.  On 23 November 1970, a medical service officer informed the applicant's commander that the applicant had been found unfit for retention in the service by a medical board and that the applicant was to be separated from the service under the provisions of Army Regulation 635-40, chapter 9, for a physical disability which EPTS without disability payment or severance pay.  On 24 November 1970, the appropriate commander approved the applicant's discharge.

13.  On 27 November 1970, the applicant was accordingly discharged.  He had attained the rank of specialist four, pay grade E-4, and had completed 1 year, 
9 months and 10 days of creditable active duty service. 

14.  Army Regulation 635-40 provides, in pertinent part, for separation of enlisted Soldiers for non-service aggravated EPTS conditions when the Soldier requests waiver of the Physical Evaluation Board (PEB).  This chapter is applicable to enlisted Soldiers on active duty for more than 30 days.  The case must meet the following conditions:  (1) Soldier is eligible for referral into the disability system; (2) the Soldier does not meet medical retention standards as determined by the medical board; (3) the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; (4) the Soldier is mentally competent; (5) knowledge of information about his or her medical conditions would not be harmful to the Soldier’s well being; (6) further hospitalization or institutional care is not required; (7) after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and (8) Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits.  Unless otherwise indicated, the Soldier will be separated with an honorable or general discharge.  If the Soldier is in entry level status at the time of processing, service will be uncharacterized.

15.  On 30 January 1990, the VA wrote a letter to the applicant stating that service connection for his skin condition was denied because there was no evidence showing it was incurred during military service or aggravated by such service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be changed to show that his medical condition was aggravated by his military service.

2.  The available evidence of record clearly shows that a medical board found the applicant unfit for retention due to a medical condition that existed prior to his military service.  The initial diagnosis indicated that his condition was aggravated by military service; however, the available evidence indicates that the final diagnosis did not confirm that it was aggravated by his military service.  Furthermore, the applicant concurred with the board's findings and did not want to remain on active duty.

3.   The applicant has not provided sufficiently convincing evidence showing that his medical condition was aggravated by his military service.  

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090002506



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ABCMR Record of Proceedings (cont)                                         AR20090002506



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