IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120010187 


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 the medical records of his deceased father, a former service member (FSM), be corrected to reflect the severity of what happened to him and to be more specific about the extent of his injuries and how they actually occurred. 

2.  The applicant states, in effect, the Army deliberately misrepresented and omitted facts, thereby violating laws and regulations regarding the injuries the FSM incurred in combat which the Department of Veterans Affairs (VA) used to further deny him the disability rating, benefits, and compensation he deserved. As an example:

* One medical document focused on his right ankle and nothing else when he was actually unconscious and requiring to be carried off the battlefield on a stretcher with several other injuries
* Another medical document shows he was conscious upon being admitted to the 17th Field Hospital to conceal the facts about the incident that inflicted numerous casualties on his company
* Another document shows his diagnosis as severe contusion to the right ankle caused by a falling rock without any reference to the explosions and the friendly fire
* There is no mention of the ringing in his ears, hearing difficulty, headaches, or injury to the lower back and shoulder, or that he was unconscious
* There is no mention of any daily care for 29 out of 45 days of hospitalization
* Tests conducted in 2006 clearly show he incurred a major head injury and damage to his hearing and lower back attributed to explosions
* One document has the word "accidentally” added at a later date in an effort to misrepresent the facts about his near-death combat experience
* The FSM was almost killed on 31 October 1944 by friendly fire and he was unconscious for at least 25 days due to major head trauma and possibly blood seepage on his brain
* The FSM was discharged from the hospital on 14 December 1944 and reassigned to another unit to perform driver duties but was sent right back into combat
* On 3 April 1945, he checked back into the hospital and his near fatal injuries were again ignored by the Army
* The Army records misrepresent the facts and claim he had stomach and bowel trouble since he was young
* His induction medical records do not contain any ailments and he never complained about the chronic symptoms the Army alleged he had
* Despite his condition, he was sent to combat a third time and he was involved in the liberation of Manila
* He was also hospitalized after Manila for acute neuritis in the right arm
* Subsequent tests clearly show he suffered from neurological damage which the Army chose to ignore
* All the Army's medical conclusions were obtained from physical examinations without any tests being performed and his records do not reflect the truth
* The Army falsified his discharge examination and claimed there was a fire in St. Louis
* The Army claimed the FSM had psychological problems when he was in fact normal in every way including psychology
* He was mistreated by the VA to the extent that he was threatened if he submitted another appeal
* The treatment he received from the Army and the VA is despicable; the VA used the current Army medical records to destroy him financially
* It would be an act of negligence if the Army does not correct the medical records 

3.  The applicant provides 42 exhibits consisting of:

* some of the FSM's service medical records
* multiple correspondence letters from and with the VA
* multiple VA examination records, clinical records, charts, and reports
* medical articles and internet printouts
* other related 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 FSM's 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 his records were lost or destroyed in that fire.  However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 21 July 1943, and entered active service in Franklin, OH, on 11 August 1943.  This form also shows that at the time of separation, he held military occupational specialty 604 (Light Machine Gunner) and he was assigned to Company C, 323rd Infantry, 81st Division.

4.  His WD AGO Form 53-55 also shows he departed the Continental United States (CONUS) on 3 July 1944 and he arrived in the Asiatic Pacific Theater of operations (APT) on 8 July 1944.  He departed the APT on 3 December 1945 and arrived back in CONUS on 15 December 1945.

5.  He completed 11 months and 14 days of CONUS service and 1 year,
5 months, and 13 days of foreign service.  He was honorably discharged on           8 January 1946.  The WD AGO Form 53-55 also shows in:

* Item 31 (Military Qualifications and Date) - the Combat Infantryman Badge 
* Item 32 (Battles and Campaigns) - he participated in the Northern Solomon and Southern Philippines campaigns
* Item 33 (Decorations and Citations) - Asiatic-Pacific Theater Campaign Ribbon with two bronze service stars, Philippine Liberation Ribbon with one bronze service star, World War II Victory Medal, and Purple Heart
* 
Item 34 (Wounds Received in Action) - the entry "Palau Island 31 October 1944"

6.  On 29 September 2011, he was issued a DD Form 215 (Correction to 
DD Form 214 - Certificate of Release or Discharge from Active Duty) that added award of the Bronze Star Medal.

7.  It appears that over the years the FSM communicated with the VA regarding service-connected disability compensation for various conditions including post-traumatic stress disorder, brain injury, lower back injury, ankle injury, tinnitus, and neuritis in the shoulder. 

8.  The FSM died on 20 January 2007.

9.  It also appears the applicant has filed a Tort Claim against the DOD and the Army, alleging misrepresentation, deceit, omission, and negligence. 

DISCUSSION AND CONCLUSIONS:

1.  Medical records reflect the observations and opinions of medical professionals at the time they were created.  Alteration of a diagnosis in those records after the fact may lead to fundamental questions about the veracity of the records in this case and in general.  For these reasons, it would not be proper to change any of the medical documents the applicant provides which would, in effect, alter a diagnosis in the FSM’s medical records.  

2.  The Army maintains an orderly system in which a physician makes certain observations and diagnoses and records them faithfully in the medical records at the time.  It would take independent and corroborating evidence to alter a diagnosis.  The applicant failed to provide the necessary evidence or proof to corroborate what he contends is incorrect on the FSM's medical records. 

3.  In the FSM’s case, the preponderance of the evidence shows military medical officials made various entries on his medical records.  Each diagnosis was duly recorded in his medical records and the applicant has not presented sufficient reason to alter the basis of the Army’s diagnosis.  In the absence of evidence to the contrary it is presumed the FSM was diagnosed by competent military medical authorities and his medical records were properly annotated.

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)                                         AR20120010187





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ABCMR Record of Proceedings (cont)                                         AR20120010187



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