IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090019149 


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 DA Form 3713 dated 14 July 1988 be corrected to show in item 31 (A Member of an Armed Force) that he did have military service before 24 September 1975 and the statement in item 36 (Remarks) should show his illness occurred under conditions simulating war during a military training exercise.

2.  The applicant states had prior active duty service from 28 May 1965 to 
27 May 1968 and that his illness occurred under conditions simulating war during a military training exercise.  

3.  The applicant provides:

* Copy of two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Orders Number D134-19, dated 14 July 1988
* Copy of U.S. Army Enlisted Records Center (USAEREC) Form 3 (Statement of Service –Enlisted Personnel) dated 24 September 1986
* copy of his DA Form 3713
* copy of his Narrative Summary, dated 17 December 1986
* Copy of an unidentified handwritten document dated 24 March 1986
* Copy of an extract from Department of the Army Pamphlet 360-506


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 enlisted in the Regular Army (RA) on 20 May 1965 and served until he was released from active duty (REFRAD) on 27 May 1968 and transferred to the United States Army Reserve (USAR).  He was apparently discharged from the USAR upon the expiration of his 6-year military service obligation.  He again enlisted in the RA on 8 June 1976 and served until he was retired by reason of physical disability- temporary on 11 March 1987. His          DD Form 214 dated 11 March 1987 shows he completed 13 years, 9 months, and 4 days of active duty service.

3. The applicant submitted a copy of an unidentified handwritten document dated 
24 March 1986 which states the applicant was returned from a field training exercise (FTX) because of chest pain.  

4.  The applicant submitted a copy of his Narrative Summary which contains the results of his medical evaluation board (MEB) and the following history of his present illness:

* 28 October 1985 –applicant admitted after an episode of crushing chest pain that lasted 15 minutes and was associated with shortness of breath and diaphoresis, myocardial infarction was ruled out and applicant placed on anti-anginal medicines
* 12 November 1985 – applicant completed a stress test with good exercise tolerance, slightly less the 1mm of ST segment depression and several episodes of similar chest pain with exertion that was resolved with rest and nitroglycerin
* 
24 March 1986 – applicant seen in emergency room after experiencing chest pain during an FTX 
* 7 April 1986 – applicant admitted, started on anti–anginal medicines and transferred to Walter Reed Army Medical Center for cardiac catheterization 
* 10 April 1986 – initial cardiac catheterization showed normal results
* 9 May 1986 – subsequent Thallium stress test showed normal coronary arteries

5.  The applicant's Narrative Summary also shows that on 9 May 1986 he underwent a coronary arteriography with Ergonive provocation and a coronary artery spasm was induced, causing an exact duplication of his previous complaints of chest pain.  The chest pain responded to inter-coronary nitroglycerin, sublingual nitroglycerin, and sublingual Procardia and he was subsequently placed on Cardizem and Isordil.  The Narrative Summary further shows that Doctor C---s at the Walter Reed Army Medical Center felt that the applicant would be unable to continue on active duty with this medical condition.  In addition, the applicant had moderate chronic osteoarthritis of the right knee and had a history of a previous MEB for this problem in 1984.

6.  The applicant's record contains a MEDDAC Form 1656 (Respond to Physical Evaluation Board [PEB]) dated 14 January 1987 which shows that the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case. 

7.  The applicant submitted a USAEREC Form 3, dated 24 September 1986, which shows the following:

* Enlisted, RA 28 May 1965 to 27 May 1968
* REFRAD, USAR, 28 May 1968 to 27 May 1971
* Enlisted USAR 12 May 1976 to 7 June 1976
* Enlisted RA 8 June 1976 to 11 March 1987

8.  Orders Number D29-2, US Army Military Personnel Center, Alexandria, VA dated 11 February 1987 show that the applicant was relieved from duty and placed on the temporary disability retired list (TDRL) effective 11 March 1987 with a 100 percent disability rating. 

9.  The applicant's record contains a DA Form 3713 dated 11 February 1987 which shows the following:

* 
Item 16 (Type of Retirement)  Temp disability
*  Item 30 (Physical Disability Information Pertaining to Dual Compensation Action)  Retired for a disability caused by an instrument of war and incurred in the line of duty during a war "NO"
* Item 31 (A Member of the Armed Forces on 24 September 1975) "NO"
* Item 36 (Remarks) the disability did not result from a combat-related injury.  Excluded from Provisions of Public Law 94-106

10. The applicant submitted an extract from Department of the Army Pamphlet 360-506 in which he highlights the following:

* paragraph 5-1d(1) which addresses the rules pertaining to the taxation of certain military and government disability pensions and states they are not taxable if entitled to receive a disability payment before 25 September 1975
* paragraph 5-1d (2), (3) and (4) which defines combat-related injuries to mean personal injury or sickness that takes place under conditions simulating war, including training exercises such as maneuvers or are caused by an instrumentality of war  

11.  Orders Number D134-19, US Army Military Personnel Center, Alexandria, VA dated 14 July 1988 show that the applicant was removed from the TDRL list and permanently retired on 28 July 1988 with a 100 percent disability rating. 

DISCUSSION AND CONCLUSIONS:

1.  While there is evidence that shows the applicant served in the Armed Forces prior to 24 September 1975, there is no evidence nor did he submit any evidence that shows he actually served in the Armed Forces on 24 September 1975.  Therefore, he is not entitled to have item of his DA Form 3713 corrected to read "YES." 

2.  Although the applicant's MEB  and medical documentation submitted by the applicant show he was permanently retired with a disability rating of 100 percent further evidence of record shows he began to seek medical treatment for his medical condition prior to the 26 March 1986 FTX.  Therefore, there is no evidence to show his disability was caused by an instrumentality of war, under conditions simulating war, or incurred in line of duty during a period of war.  Therefore, he is not entitled to have item 36 of his DA Form 3713 changed to show that his illness occurred under conditions simulating war.


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)                                         AR20090019149



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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