IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100030525 


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, the widow of a deceased former service member (FSM), requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he completed 3 months of active service.

2.  The applicant states the FSM was discharged prior to completing 3 months of service while recovering from injuries sustained on active duty.

3.  The applicant provides:

* the FSM's DD Form 214
* a Standard Form (SF) 88 (Report of Medical Examination), dated 22 April 1968
* two American National Red Cross letters, dated 19 May 1980 and 8 July 1980
* a newspaper article entitled "Injured in Army - City Man Missing Week
* the FSM's Certificate of Death
* her marriage license

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 FSM enlisted in the Regular Army on 15 July 1968.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest rank/grade he held was private (PV1)/E-1.

3.  The FSM's military records contain a DA Form 1361 (Recommended Findings of Physical Evaluation Board (PEB)), dated 26 September 1968.  This form shows it was determined the FSM was unfit for military service and that this unfitness was not incurred while on active duty or otherwise related to his military service.  This form further indicated his condition existed prior to service (EPTS).

4.  Special Orders Number 232, issued by Headquarters, U.S. Army Personnel Center, Fort Jackson, SC, dated 4 October 1968, honorably discharged the FSM, effective 7 October 1968, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 9, by reason of physical disability - EPTS.

5.  The FSM's complete discharge packet is not available for review; however, the DD Form 214 the FSM was issued at the time shows he was honorably discharged on 7 October 1968 under the provisions of Army Regulation 635-40, chapter 9.  He was assigned a Separation Program Number (SPN) of 277.  His DD Form 214 further shows he completed a total of 2 months and 23 days of total active service.

6.  The applicant provided a newspaper article indicating the mother of the FSM (20 years of age at the time the article was published) stated he was suffering from a nervous breakdown stemming from an injury the previous July at Fort Jackson, SC.  The FSM's mother further stated he was suffering from delusions resulting from an incident the previous year at Fort Jackson in which he suffered multiple head injuries when according to the mother, the FSM was struck on the head with a billiard cue and severely beaten by four enlisted men.


7.  The applicant also provided two American National Red Cross letters which contain information indicating a sworn statement (not available to the Board for review) from the writer of the aforementioned newspaper article and the newspaper article itself support the FSM's statement regarding the beating incident.  The author of the letter then contends that this information was evidence of aggravation of the FSM's mental disorder beyond its normal course during his active service; therefore, it provided a basis for award of service-connection for a mental disorder presently diagnosed as manic-depressive illness, by reason of aggravation.

8.  Army Regulation 635-5 (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 provides a brief, clear-cut record of active service at the time of release from active duty, retirement or discharge.

9.  Army Regulation 635-5, Appendix A, in effect at the time, shows SPN 277 corresponded to a physical disability - EPTS - established by a medical board and the individual made application for discharge by reason of physical disability (not entitled to receive severance pay).

10.  Army Regulation 635-40, chapter 9, provides for the discharge of enlisted personnel who in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, are unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's DD Form 214 and permanent orders show he was discharged from the Regular Army on 7 October 1968 due to his own application for discharge by reason of physical disability that existed prior to his entry in the service.

2.  The applicant provided a newspaper article indicating the FSM's mother stated he was suffering from a nervous breakdown stemming from an injury incurred at Fort Jackson.  The FSM's mother further stated he was suffering from delusions resulting from an incident in which he suffered multiple head injuries when according to the mother, the FSM was struck on the head with a billiard cue and severely beaten by four enlisted men.


3.  A DA Form 1361 shows it was determined that the FSM was unfit for military service and that this unfitness was not incurred while on active duty or otherwise related to his military service.  This form further indicated the FSM's condition was EPTS.  There is no military medical documentation available identifying the physical disability.

4.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that if the FSM had incurred head injuries so severe to cause aggravation of his EPTS condition, the Physical Evaluation Board would have considered it in its review.  As such, a presumption of regularity must be applied, that his physical disability was not incurred or aggravated by or during his military service.  As such, there is no basis for changing the FSM's discharge date on his DD Form 214 to show his served
3 months.

5.  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 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)                                         AR20100030525



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030525



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1