IN THE CASE OF:
BOARD DATE: 25 September 2012
DOCKET NUMBER: AR20120004879
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 U.S. Army Vietnam (USARV) Form 130 (U.S. Army Vietnam Casualty Report Format) dated 1971.
2. The applicant states:
* The form shows he was wounded in his right leg but he was wounded in his left leg
* Because he was wounded in his left leg, he is being treated at the Department of Veterans Affairs (VA) Medical Center on his left leg
* There is no scar on his right leg
3. The applicant provides:
* VA Form 21-4142 (VA Authorization and Consent to Release Information to the VA)
* VA Form 21-8940 (VA Veteran's Application for Increased Compensation Based on Unemployability)
* VA Form 21-4192 (VA Request for Employment Information in Connection with Claim for Disability Benefits)
* USARV Form 130
* VA medical record, dated 2012
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 was inducted into the Army of the United States on 6 July 1970. He served as a combat engineer in Vietnam from 4 December 1970 to 3 December 1971. On 18 January 1972, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.
3. He provided a USARV Form 130, dated 1971, which states he was injured from an explosion and he sustained a small calf wound of his right leg.
4. There is no contemporaneous medical evidence of record which shows he injured his left leg.
5. He provided a VA medical record, dated 3 February 2012, which shows he was treated for left calf pain. The record states "Pt (patient) felt he might have shrapnel in the area of pain but X-ray did not corroborate this."
DISCUSSION AND CONCLUSIONS:
1. The USARV Form 130 was a document in use during the Vietnam War. The USARV Form 130 is now obsolete and no longer maintained. As it is no longer an authorized or accepted form, corrections cannot be made to the form (in anything other than a pen and ink correction format or a cover certificate stating what the form should have said). Assuming for the sake of argument the form was completed incorrectly to reflect right calf, not left calf, the important point is that evidence of a wound was recorded, not which leg was injured.
2. Since it appears the VA is treating the applicant for his left-calf injury, there appears to be no harm to the applicant in not correcting the USARV Form 130. However, if the applicant is being denied some benefit because of the entry, he may apply for reconsideration with sufficient evidence (i.e., his military service medical records, which the VA might have) to confirm he was treated for a left calf injury while on active duty, not a right calf injury.
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) AR20120004879
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