IN THE CASE OF:
BOARD DATE: 10 February 2011
DOCKET NUMBER: AR20100019609
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 honorable discharge be changed to a medical retirement.
2. The applicant states he was discharged from military service due to service-connected disabling conditions that made him unfit for further military service. He adds that this condition currently entitles a veteran to "chapter 61" retiree benefits. He further adds that an 84-year old veteran should not be treated differently than today's veterans.
3. The applicant provides:
* his Honorable Discharge Certificate
* his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge)
* letter from the Army Combat-Related Special Compensation (CRSC) Branch
* letter from the Fort Knox Veteran Service Office addressed to the CRSC Branch
* Department of Veterans Affairs (VA) rating decision documents
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 records show he was inducted into the Army of the United States on 8 November 1943 and entered active service on 29 November 1943. He completed initial entry training, was awarded the military occupational specialty of rifleman, and was promoted to the rank of private first class.
3. His WD AGO Form 53-55 shows he was honorably discharged on 14 August 1945 with a Certificate of Disability for Discharge (CDD).
4. The WD AGO Form 53-55 issued confirms he completed a total of 1 year, 9 months, and 7 days of creditable active military service. Item 34 (Wounds Received in Action) of this form shows he was wounded on two separate dates while serving in the European theater.
5. A VA rating decision, dated 20 November 2008, shows disability ratings for residuals for multiple gunshot wounds.
6. Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, there were no provisions of law whereby an enlisted person with less than 20 years of service could be retired from the Army for physical disability. Under the then existing law, compensation and pension for service-connected disabilities were under the jurisdiction of the VA. When an enlisted Soldier was separated for physical disability, he was given a CDD to enable him or her to apply for benefits from the VA.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be changed to a medical retirement was carefully considered. However, at the time of his discharge there were no provisions of law authorizing separation of an enlisted person with less than 20 years of service with a medical retirement.
2. 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 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) AR20100019609
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ABCMR Record of Proceedings (cont) AR20100019609
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