BOARD DATE: 28 January 2014
DOCKET NUMBER: AR20130008909
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, that his disabilities be determined to have been incurred in the line of duty.
2. The applicant states:
* his orders state he was medically disqualified
* he received an honorable discharge and his orders read "medically unfit"
* he was discharged due to his medical condition, which was aggravated in service while he was serving on active duty
* he was hospitalized twice at Ireland Army Hospital, Fort Knox, Kentucky, while he was in basic training
* he was also hospitalized at Fort Leonard Wood, Missouri, and Valley Forge Medical Center and Hospital, Coatesville, Pennsylvania
* he has been told several times his records cannot be located due to "closing 08"
* he is 70 years old and he pays for medical care for asthma, gastroesophageal reflux disease, and sleep apnea which he cannot afford
* he lives solely on social security benefits and has been a patient at the Department of Veterans Affairs Medical Center in West Palm Beach, Florida, for 13 years
* he has applied for service-connected disability in the past and was denied in January 2002
* he appealed and was denied in June 2002
* the reason for denial of his appeal was due to "breathing/asthma not aggravated by service and pre-existed" although he was medically disqualified while on Reserve duty after 4 years of service
3. The applicant provides no additional evidence.
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 enlisted in the U.S. Army Reserve (USAR) on 10 March 1964. He was ordered to active duty for training (ACDUTRA) effective 10 May 1964. He completed training as a wheel vehicle mechanic.
3. On 12 September 1964, the applicant was released from ACDUTRA and returned to the control of the USAR to complete his service obligation.
4. The facts and circumstances pertaining to the applicant's discharge are not available. The available records show the Commander, Company A, 330th Engineer Battalion, was issued a memorandum from an assistant adjutant general, dated 6 August 1968, requesting submission of the applicant's Military Personnel Records Jacket with "AGRZ Form 105" since he had been found medically disqualified for retention. The memorandum states the applicant's discharge orders would be issued as soon as the Military Personnel Records Jacket was received.
5. On 10 September 1968, Headquarters, 1st U.S. Army, Special Orders Number 237, honorably discharged the applicant from the USAR effective 20 August 1968 under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), paragraph 21a, due to being medically disqualified.
6. Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-9 provides that the Board 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 contentions have been noted.
2. As previously stated, the facts and circumstances pertaining to his discharge are not available. The available records show he was honorably discharged from the USAR effective 20 August 1968 under the provisions of Army Regulation 135-178, paragraph 21a, due to being medically disqualified.
3. There is no evidence in the available records and the applicant has not provided any evidence to substantiate his contention that his disqualifying condition was aggravated by service or that it was not a preexisting condition.
4. In accordance with Army Regulation 15-185, the Board begins 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.
5. In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
6. In view of the foregoing, the applicant's request should be denied.
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 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) AR20130008909
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