IN THE CASE OF:	

		BOARD DATE:	  26 January 2010


		DOCKET NUMBER:  AR20090004998 


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 granted a medical retirement for tuberculosis (TB), fungus of the feet, Post Traumatic Stress Disorder (PTSD), and heart problems.  

2.  The applicant states he should have been examined when he was released from active duty and these medical conditions should have been added to his disability rating.  He states that he was "retired" with a 20 percent disability rating and his other medical conditions were not taken into consideration.  He alleges that it is a total injustice to insist on a 20 percent disability rating.

3.  The applicant provides the following documents in support of his application:

* Personal statement;
* Letter, dated 12 September 2008, from the Department of Veterans 
Affairs (DVA);
* VA Form 21-4138 (Statement in Support of Claim), dated 7 November 
2008;
* Letter, dated 26 December 2007, from the National Organization for Rare 
Disorders (NORD);
* Letter, dated 16 September 1994, from the Department of Energy;
* Tissue Pathology Report, dated 13 November 1985;
* U.S. Army Reserve (USAR) reassignment orders, dated 20 June 1958;
* Letter, dated 25 September 2002, from civilian ophthalmologist;
* Newspaper article;
* Standard Form 519-B (Radiologic Consultation Request/Report);
* Consultation Sheet;
* Letter, dated 19 May 1958, from Headquarters, XVI United States Army 
Corps (Reserve);
* Honorable Discharge Certificate, dated 2 October 1959;
* Letter addressed to DVA;
* Letter, dated 10 July 2009, from DVA;
* Letter, undated;
* Letter, dated 18 July 1994, from district attorney’s office;
* Information regarding TB;
* Narrative Summary;
* Mount San Rafael Hospital Discharge Summary;
* DD Form 214 (Armed Forces of the United States Report of 
Transfer or Discharge);
* Letter from Pueblo Radiological Group;
* Title 10, U.S. Code (USC), Section 274 (Retired Reserve);
* Letter, undated;
* Excerpts from Title 10, USC, Section 12735;
* Medical report from Internal Medicine Associates, dated 22 October 1999;
* Letter, dated 7 January 1974, from USAR Components Personnel and 
Administration Center; and 
* Letter addressed to his congressman

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 complete military records are not available to the Board.  However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The applicant’s DD Form 214 shows he was inducted into the Army of the United States on 3 October 1951 and was released from active duty on 27 September 1953 under the provisions of Special Regulation 615-363-5 (Enlisted Personnel Release to National Guard and Army Reserve) and Special Regulation 615-360-5 (Release from Active Military Service to the Reserve Components).  On the following day, he was transferred to the Army Reserve to complete 8 years of service under the Universal Military Training and Service Act.  His DD Form 214 shows he had completed 1 year, 11 months, and 25 days net service.   

4.  His DD Form 214 shows completed 1 year, 4 months, and 23 days of foreign service and was awarded the Korean Service Medal with three bronze service stars, the National Defense Service Medal, the United Nations Service Medal, and the Meritorious Unit "Citation".  

5.  The applicant’s Narrative Summary (Final Summary) shows he was evaluated on 8 August 1956 for complaints of painful shoulders, thoracic lumbar spine and hips.  He was diagnosed as having rheumatoid arthritis of the spine, common cold, and osteoarthritis of the left knee.  

6.  In a 19 May 1958 letter, the XVI United States Army Corps (Reserve) informed the applicant that he had been determined to be permanently physically disqualified for retention in an active status in the Army Reserve due to rheumatoid arthritis.  He was advised to indicate whether or not he desired to be discharged from the Army Reserve or transferred to the Retired Reserve for an indefinite period.  The letter indicated that his physical disability was service-connected and he was eligible for transfer to the Retired Reserve.  The applicant elected to be transferred to the Retired Reserve.  

7.  Headquarters, XVI United States Corps (Reserve), Omaha, NE, Special Orders Number 114, dated 20 June 1958, show the applicant was determined to be permanently physically disqualified under the provisions of paragraph 8a(2) of Army Regulation 140-160 and was transferred to the Retired Reserve on 24 June 1958.  There is no evidence which shows the applicant received a 20 percent disability rating.  

8.  The applicant was honorably discharged from the Army Reserve on 2 October 1959.

9.  The applicant’s Discharge Summary from Mount San Rafael Hospital, dated March 1979 indicated his chest x-ray was normal and he was diagnosed as having pericarditis [an inflammation of the pericardium (the fibrous sac surrounding the heart)].

10.  The applicant’s Tissue Pathology Report, dated 13 November 1985, from the Northern Colfax County Hospital, diagnosed him as having pigmented basal cell carcinoma of skin of back.  

11.  On 3 February 1993, the applicant underwent a computed tomography (CT) of his abdomen and it was found that he had a pacemaker.  His Radiologic Consultation Request/Report indicated the pacer wires were causing streak artifact within the heart.  

12.  The applicant provided a personal statement in support of his claim.  He gave reasons for his request for service connection for fungus of the feet, PTSD for his traumatic experience in Korea in 1952 and his heart problems that resulted from TB and radiation exposure.  The applicant argued that he was not informed about TB, only arthritis.  He claimed he possibly caught TB as a youngster before he was inducted into the Army.  He would now like treatment for radiation exposure.  

13.  The applicant provided another personal statement in which he claimed he was not briefed on the effects of TB.  He claimed he did not know he had TB in the past and he found out when his doctor told him that TB was revealed in a CT scan performed in 2007.  He believed the Army used him as a guinea pig to test if radiation would kill TB.  The applicant argued he was not informed that he was exposed to 600 RADS of radiation a day for 10 days.  He stated he was actually told he had a disease and rheumatoid arthritis and that radiation would cure it.  He stated he needed medical attention to treat his liver, pancreas, kidneys, heart, and lungs.  He stated the Army took his identification (ID) card, but he was issued a non-medical ID card.  

14.  On 23 October 2007, the applicant had a CT scan of the chest at the Pueblo Radiologic Group.  The CT scan revealed the following:  large right pleural effusion [accumulation of fluid between the layers of tissue that line the lungs and chest cavity] in the right lower lung; liver was slightly enlarged; right kidney normal in appearance; left kidney slightly atrophic [a wasting or decrease in size of a body organ, tissue, or part owing to disease, injury, or lack of use]; scattered athermanous [not transmitting heat] changes of the aorta in its branch vessel; no free fluid in the pelvis; and a cardiac pacemaker.  

15.  In a 10 July 2009 letter, the VA informed the applicant that his claim for the following medical conditions:  PTSD, eye condition, liver condition, fungus of the feet, basal cell carcinoma of the back, chest pain, pancreatitis, TB, pes planus, arteriosclerotic heart disease with hypertension, and residuals of radiation exposure involving the kidney, was being worked on.  The VA requested additional evidence from the applicant.  There is no evidence of disability rating from the VA for these medical conditions.  

16.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

17.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been examined when he was released from active duty and his other medical conditions should have been added to his disability rating.  However, in the absence of evidence to the contrary, it is presumed the applicant was examined by competent military medical personnel who made a valid determination that he had rheumatoid arthritis at the time of his separation.

2.  The applicant was released from the Ready Reserve on 24 June 1958 by reason of physical disability and was transferred to the Retired Reserve on the following day.

3.  The applicant contends that he was retired with a 20 percent disability rating and his other medical conditions were not taken into consideration.  He also contends that it is a total injustice to insist on just a 20 percent disability rating.  However, there is no evidence which shows the applicant was granted a 20 percent disability rating at the time of his separation from the Army.  

4.  In the absence of evidence to the contrary, it is presumed the applicant was appropriately discharged from the Army Reserve by reason of physical disability in accordance with the governing regulation then in effect.  

5.  There is no evidence of record and none provided by the applicant which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090004998





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ABCMR Record of Proceedings (cont)                                         AR20090004998



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