BOARD DATE: 21 September 2010
DOCKET NUMBER: AR20100009761
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 amendment of an entry on a Standard Form (SF) 502 (Clinical Record - Narrative Summary), dated 6 June 1973. He also requests correction of item 12 (Last Duty Assignment and Major Command) of his DD Form 214 (Report of Transfer or Discharge).
2. The applicant states:
* the entry "in the field" on the SF 502 is wrong and should not be there
* the correct entry should be "injured during combat training"
* his last duty assignment and major command is wrong on his DD Form 214 and should read HQ CO [Headquarters Company], 1st BN [Battalion], 16th Inf [Infantry], APO NY [Army Post Office New York] 09046
3. The applicant provides a copy of:
* his DD Form 214
* page 1 of his SF 502, dated 6 June 1973
* page 3 of his DA Form 20 (Enlisted Qualification Record)
* Disapproval Reconsideration Letter from the U.S. Army Human Resources Command, Combat-Related Special Compensation Division, Alexandria, VA, dated 14 July 2008
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 applicants 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 applicants 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 on 30 March 1971 for a period of
2 years. He was awarded military occupational specialty 94B (cook). His DA Form 20 shows he arrived in Germany on 8 October 1971 and he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 16th Infantry.
3. The applicant provided an SF 502, dated 6 June 1973, which states, in pertinent part, "The patient injured his right wrist in September of 1972. He states that he was "in the field" at the time, and fell, catching himself with his wrist, and was felt to have a slight radial-ulnar dislocation and a laceration of the right medial wrist."
4. On 16 October 1973, the applicant was released from active duty and placed on the Temporary Disability Retired List (TDRL) the following day. On 31 August 1975, the applicant was removed from the TDRL and permanently retired with a 30 percent (%) disability rating percentage.
5. Item 12 of the applicant's DD Form 214 shows the entry "HQ CO 1st BN 26th Inf APO NY 09046."
6. There is no contemporaneous medical evidence of record which shows the applicant was injured during combat training in the field.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends the entry on the 6 June 1973 SF 502 is incorrect in that he was injured during combat training, there is no evidence, and the applicant did not provide any evidence, which conclusively refutes the entry
in question on the SF 502. In the absence of compelling evidence to the contrary, it must be presumed that the medical authorities at the time in question were correct. Therefore, there is no basis to amend the 6 June 1973 SF 502.
2. Item 12 of the applicant's DD Form 214 shows his last duty assignment was Headquarters Company, 1st Battalion, 26th Infantry. However, evidence of record shows his last duty assignment was HHC, 1st Battalion, 16th Infantry in Germany. Therefore, it would be appropriate to correct item 12 on his DD Form 214 accordingly.
3. Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states that for item 12, enter the individual's current unit of assignment and the title of the major command or agency having jurisdiction over the organization.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
__x_____ ___x____ ____x___ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 12 of his DD Form 214 the entry "HQ CO 1st BN 26th INF APO NY 09046" and replacing it with the entry "HHC 1ST BN 16TH INF APO NY 09046."
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends
denial of so much of the application that pertains to amending the 6 June 1973 Standard Form 502.
_________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) AR20100009761
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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