IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110025249 


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, his Standard Form (SF) 89 (Report of Medical History) and SF 88 (Report of Medical Examination) be corrected to show his "trick knee," other ailments, and his actual separation date in order for him to qualify for Department of Veterans Affairs (VA) benefits.

2.  The applicant states:

* there can only be one separation examination in a 2-year stay in the Army
* individuals do not take 4-month separation examinations before discharge 
* his SF 89 was falsely done at the VA in Houston, Texas
* his name was forged and Kentucky is misspelled
* according to the SF 89 he should have been discharged on 20 October 1967, his original date
* he has never seen the original SF 89
* the forms appear to have been altered because the "X's" are wrong and he does not use them unless requested
* the VA used his entrance examination to get their information rather than the 20 October 1967 separation examination
* for 45 years he could not understand why he has been denied on legal claims, but now he questions their [VA] problem
* it is a shame he only had "18 minutes" of basic [training] 
* his advanced individual training (AIT) in military occupational specialty (MOS) 11C (Indirect Fire Infantryman) was cancelled and all he could do was sit 
* he questions the location of his medical records and diagnoses contained in those records
* on 26 July 2010, he caught the VA using many separation examinations
* his only true separation examination was on 3 February 1968

3.  The applicant provides:

* self-authored statements
* SF 89, dated 20 October 1967
* SF 86, dated 20 October 1967
* self-authored letter to the VA, dated 12 August 2010
* 2-page letter extract from a VA claim authored by his previous counsel

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 was inducted in the Army of the United States on 4 February 1966.  He completed training and was awarded MOS 94B (Cook).  The highest rank/grade he attained while on active duty was specialist five/E-5.

3.  The applicant's medical records are unavailable for review.  His military medical records are now maintained by the VA.

4.  The applicant provides self-authored statements and the following:

   a.  A copy of his SF 89, dated 20 October 1967, which shows his medical condition at the time.  The form appears to have been completed by the applicant.



   b.  The applicant's SF 89 is annotated to show, at some point in time, he experienced the following illnesses/conditions:

* Rheumatic Fever and Mumps
* ear, nose, and throat trouble
* chronic or frequent colds
* severe tooth or gum trouble
* asthma
* nervous trouble of any sort

   c. A copy of his SF 88, dated 20 October 1967, which shows he had no medical complaints.  The form bears the applicant's signature.   

   d.  He also provides a self-authored letter to the VA regarding a denied claim and extracts of a letter prepared by his previous counsel which addresses the applicant's alleged medical issues.  The extracts show that among the applicant's ailments, he suffered from bilateral knee problems, residuals of a rheumatic heart condition, collapsing while on duty, respiratory infection, hospitalization, and shortness of breath and/or hyperventilation. 

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 3 February 1968.  He completed 2 years of active military service.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Separation examinations can be scheduled up to six months prior to separation and will not be scheduled less than 30 days from separation.

7.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards of sufficient detail to ensure uniformity in the medical evaluation of candidates for military service or persons in the military service in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for military duty.  The version of the regulation in effect at the time provided the following concerning the SF 88:

* a physician conducts medical examinations and signs the SF 88
* other personnel – physician assistant, nurse practioners, audiologist, etc., may conduct phases of a medical examination

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.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his SF's 88 and 89 was carefully considered.

2.  The SF 89 is completed by the member prior to a medical examination.  The applicant contends his SF 89 was forged and contains inaccurate information; however, he fails to provide evidence to substantiate this claim.  

3.  His SF 88 was completed by a physician and shows he had "no present complaint" at the time of his examination.     

4.  In view of the foregoing, there is no basis for granting the applicant's requests.  It is presumed his SF's 89 and 88 were appropriately completed.

5.  The ABCMR does not grant requests solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits.  Additionally, granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for VA benefits should be addressed to the VA.

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)                                         AR20110025249



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110025249



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1