BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090005548 


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 his record be corrected to show he was discharged due to wounds that he received in action.  He also requests that his separation date be corrected.

2.  The applicant states, in effect, he should have been discharged as a result of wounds he received in action on 2 March 1945.  He claims that his record is incorrect because his doctor did not do adequate tests.  He further claims the date of separation listed in his records, which is 7 December 1945, is not correct. The correct date is 5 December 1945.  He also claims that his physical examination report is too perfect to be correct and that no man could go through World War II and come out that perfect.  

3.  The applicant provides the following documents in support of his application:  a self-authored letter, WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement), WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge), WD AGO Form 100 (Separation Qualification Record), Department of Veterans Affairs (VA) Letters, medical treatment records, photographs, and heart information paper extract. 


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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of the applicant's WD AGO Form 53-55, various documents remaining in the NPRC file, and the documents provided by the applicant.

3.  The applicant's WD AGO Form 53-55 shows that he was inducted into the Army of the United States on 19 May 1943 and entered active duty on 26 May 1943.  He served in the European Theater of Operations (ETO) from 
16 November 1943 through 14 November 1945.  Item 30 (Military Occupational Specialty) shows he held and served in military occupational specialty (MOS) 271 (Longshoreman).  Item 32 (Battles and Campaigns) shows he participated in the Normandy, Northern France, Ardennes and Rhineland campaigns of World War II.  Item 33 (Decorations and Citations) shows that during his active duty tenure he earned the European-African-Middle Eastern Campaign Medal, Good Conduct Medal, and World War II Victory Medal.  Item 34 (Wounds Received in Action) contains the entry "None."  

4.  The applicant's WD AGO Form 53-55 also shows he held the rank of private first class (PFC) on the date of separation, and this was the highest rank he attained while serving on active duty.  It also shows he was honorably separated, on 7 December 1945, by reason of convenience of the government-demobilization after completing a total of 2 years, 6 months, and 19 days of active military service.  The applicant authenticated this document with his signature in item 56 (Signature of Person Being Separated). 

5.  A WD AGO Form 38, dated 5 December 1945, provided by the applicant documents his separation physical examination.  It shows he suffered from no significant abnormalities and provides no indication that he was ever wounded or injured as a result of enemy action.  The applicant also provides a medical treatment record that indicates he was treated for injuries he received, on 
2 March 1945.  This treatment record shows he received this injury while he was standing guard on a bridge in the vicinity of Antwerp, Belgium, when he was knocked off the bridge by a piece of wood that was sticking out on a passing train.  There is no indication that this accident was the result of or caused by enemy action.  

6.  The applicant also provides VA letters dated 30 June 2003 and 3 March 2009. The 2003 letter indicates additional information was needed for his VA claim.  The 2009 letter indicates his claim for compensation was being worked on and still being processed. 

7.  The Career Compensation Act of 1949, Public Law 351, issued by the 81st Congress, provided the first legal authority that allowed the retirement of an enlisted member from the Army for physical disability with less than 20 years of service.  Prior to the implementation of this law, compensation for and pensions for service connected disabilities were under the jurisdiction and were administered by the VA.

8.  The current disability regulatory policy is provided in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  Chapter 3 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  


9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards assigned by proper military medical authorities at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was discharged as a result of wounds he received in action, on 2 March 1945, was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  Prior to the implementation of the Career Compensation Act of 1949, there were no provisions that allowed for the retirement of enlisted members for disability prior to completing 20 years of service.  Compensation and pensions for service connected disabilities prior to the implementation of this law were administered by the VA.  As a result, given the applicant was separated from the Army in 1945, four years prior to the implementation of this Act, even had he suffered from service connected disabilities that disqualified him from further service, there were no provisions of law that allowed him to receive a disability retirement with less than 20 years of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  Further, the available evidence shows that although the applicant was accidentally injured, on 2 March 1945, when he was knocked off a bridge by a piece of wood sticking out on a passing train, and there is no indication that this injury was a disabling injury that disqualified him from further service.  His final separation physical examination documents show no disabling conditions that rendered him unfit for further service and/or that would have supported discharge processing through medical channels even under current regulatory provisions. As a result, even if the current disability retirement laws and regulations existed, he still would not have been eligible for disability retirement.


4.  The applicant's WD AGO Form 53-55 shows he was discharged by reason of convenience of the government-demobilization and not as a result of a disability on 7 December 1945.  There is no evidence in the NPRC file or provided by the applicant that would call into question the 7 December 1945 separation date listed on his WD AGO Form 53-55.  As a result, there is also an insufficient evidentiary basis to support granting this portion of the requested relief. 

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.

6.  The applicant is advised that the VA is in fact the appropriate agency to provide treatment and/or compensation for all service connected medical conditions he incurred while serving on active duty.  Therefore, he should continue to pursue his claim for compensation through that agency. 

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)                                         AR20090005548



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ABCMR Record of Proceedings (cont)                                         AR20090005548


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