IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110013931 


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:

The applicant defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's honorable discharge to show the applicant was medically retired with a 100% disability rating effective the date of his discharge.

2.  Counsel states the applicant's military service records are not available.  However, medical documentation has been obtained from alternate sources that document the applicant's combat injury and treatment in 1944.

	a.  He states that the applicant is a World War II (WWII) combat veteran suffering from service-related post-traumatic stress disorder (PTSD).  He adds that the recent Supreme Court ruling pertaining to claims-processing deadlines for veterans' benefits claims are not jurisdictional.  As such, the ABCMR should waive the 3-year statute of limitations and hear the applicant's claim based on his service-connected mental illnesses which affected his ability to fully comprehend the necessity of the timely filing of his claim to the ABCMR.

	b.  He states the applicant served in the European Theater of Operations (ETO) during WWII.  In May 1944, he was struck by shrapnel that embedded itself in his hand, which was later surgically removed at an Army hospital.  However, the blow also knocked the applicant to the ground where he sustained a traumatic brain injury (TBI) concussion that caused him to be in-and-out of consciousness for several days.

	c.  He states the military was aware of the applicant's physical and psychological condition at the time of his discharge.  Therefore, he should have been referred to the physical disability evaluation system for processing.  At a minimum, he should have been placed on the Temporary Disability Retired List for further evaluation of his conditions.

	d.  The applicant was granted service-connected anxiety and PTSD by the Veterans Administration (VA) in 1956.  A previously-filed application for a psychiatric disorder was denied and the issue is currently on appeal.

	e.  He states the applicant has received extensive and continuous medical treatment in the days since his discharge.  His mental illnesses have not settled and remain a large part of his daily life.

3.  Counsel provides copies of the applicant's service medical records, 2006 VA transcript of hearing, and 2009 VA neuropsychological assessment.

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 service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient available documents for the Board to conduct a fair and impartial review of this case.

3.  The applicant entered the Army of the United States on 23 July 1943.  He was assigned to Company F, 339th Infantry Regiment, 85th Division in the ETO.
4.  Information from the U.S. Army, Surgeon General's Office, Hospitalization Admission Cards for the Year 1944 shows the applicant was admitted to an Army Medical Treatment Facility in the ETO, as follows:

	a.  in May 1944 and diagnosed with "Conjunctivitis, catarrhal" [pink eye] and "Psychoneurosis, other, unqualified, unspecified" [a mental or behavioral disorder of mild or moderate severity]; and

	b.  in October 1944 and diagnosed with "Enterocolitis" [inflammation of the mucous membrane of both small and large intestines].

	c.  Following treatment, in both instances, he was returned to duty.

5.  A WD Form 372A (Final Payment - Work Sheet) shows the applicant arrived in the United States on 3 September 1945 and he was discharged from the Army of the United States in the rank of private first class on 13 December 1945.

6.  In support of the application, the applicant and his counsel provide copies of the following documents:

	a. Twelve pages of the applicant's medical records that show the medical treatments and diagnoses (as outlined above) on which the applicant has entered handwritten notes.  Most notably indicating when a medical doctor entered the word "concurred", the applicant interprets the word to be "concussed" or "concussened."

	b.  A VA Transcript of Hearing, dated 14 August 2006, that shows the questions at issue were the applicant's entitlement to an earlier effective date for a psychiatric condition, a change in diagnosis of the anxiety disorder to PTSD, and service-connection for gastritis.  The VA granted the applicant service-connection for PTSD (100%) and stricture of esophagus (30%).

	c.  A VA Neuropsychological Assessment, dated 9 July 2009, shows the primary reason for the applicant's deficits was likely vascular in nature and his PTSD, which could be affecting his experience of his memory.

7.  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 Soldier with less than 20 years' service could be retired from the Army for physical disability.  Under then existing law, compensation and pension for service connected disabilities were under the jurisdiction of the VA.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's records should be corrected to show he was medically retired with a 100% disability rating effective 13 December 1945.

2.  The applicant's and his counsel's contentions were carefully considered.  

	a.  Records show the applicant was treated for various medical conditions during his military service and, in all instances, he was returned to duty.  
  
	b.  Despite the applicant's and his counsel's contention, there is no evidence the applicant suffered a concussion during his military service.  Moreover, there are no military service medical records that provide evidence of a TBI or PTSD.

3.  The applicant was honorably discharged on 13 December 1945 after completing approximately 2 years and 5 months of active service.

4.  Prior to 1 October 1949, enlisted Soldiers could not be retired from the Army for physical disability with less than 20 years' of service.  Therefore, the applicant is not entitled to correction of his records to show he was medically retired based upon a permanent disability rating of 30% or more.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.

6.  Therefore, in view of all of the foregoing, there is no basis for granting the requested relief.


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)                                         AR20110013931



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ABCMR Record of Proceedings (cont)                                         AR20110013931



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