BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140015397 


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, correction of his service medical records to show his October 1959 injuries were incurred while on active duty.  

2.  The applicant states his important active duty medical records have been reported by the National Personnel Records Center to have been destroyed by a fire in 1973.  Records of the injuries he received on 4 October 1959 were lost in the fire.  He has civilian records but Army records are needed to finalize his disability claims, especially for lumbar spine, bilateral knees, heart condition, traumatic brain injuries, and other medical issues. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and an Honorable Discharge Certificate. 

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 available records show, prior to his induction into the Army of the United States (AUS), he underwent a pre-induction physical at the New Orleans Armed Forces Examining Station on 24 July 1958.  

	a.  He completed a Standard Form 89 (Report of Medical History) and listed the following pre-existing conditions:  Appendectomy, sub-mucous resection, bronchography, and sinus drainage above the left eye. 

	b.  His examining physician completed a Standard Form 88 (Report of Medical History) and noted the applicant's medical issues in addition to the condition of hypertension.  The physician found him qualified for induction.

3.  The applicant's available records also show he was inducted into the Army of the United States and entered active duty on 4 December 1958.  He completed training at Fort Hood, TX, and he held military occupational specialty (MOS) 716.10 (Personnel Specialist). 

4.  On 7 March 1959, he was admitted to the U.S. Army Hospital at Fort Hood, TX, with the chief complaints of headaches and swelling of the left frontal area.  He had had recurrent episodes of acute frontal sinusitis, especially on the left side for the past 2 to 3 years.  He was admitted and put on medications which improved his condition and increased the sinus discharge.  By 17 March 1959, he was much improved and discharged from the hospital.  

5.  Also on 17 March 1959, he was issued a DD Form 481-2 (Clinical Record Cover Sheet), that assigned him a temporary physical profile for sinusitis, non-purulent, chronic, left frontal, organism undetermined:  Existed Prior to Service (EPTS) and is Not in Line of Duty.

6.  Following completion of MOS training, he was assigned to the
9th Administrative Company, and then to Headquarters and Headquarters Detachment, 9th Infantry Division, Fort Carson, CO.

7.  On 3 November 1959, he submitted a request for a hardship discharge (mother's illness).  His chain of command recommended approval of his request. 

8.  On 10 November 1959, he underwent a separation physical at the U.S. Army Hospital, New Orleans.  The military physician found him medically qualified for discharge and assigned him a PULHES of "1-1-1-1-1-1" and Physical Category "A" (fully qualified).  The military physician entered the following remarks on the Standard Form 88 and 89: 

* complains of both knees being painful and swollen injured while playing football in 1953; had trouble with them 18 months ago; no trouble at present time
* usual childhood diseases
* complains of headaches due to sinus trouble
* has frequent colds due to change in weather
* has a history of sinus trouble since 1954, presently taking medication
* has a history of asthma since 1954, states the condition is moderate
* has shortness of breath that is caused by asthma and his pain and pressure in the chest are caused by bronchitis
* had an appendectomy in 1952
* complains of trick left shoulder, injured while playing football in 1955

9.  On 23 November 1959, consistent with the chain of command recommendation, the separation authority approved the applicant's request for a hardship discharge.  

10.  The applicant was honorably discharged on 25 November 1959 by reason of hardship.  He was issued an Honorable Discharge Certificate.  His DD Form 214 shows he completed 11 months and 22 days of active duty. 

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  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 was inducted into the AUS on 4 December 1958 with several conditions that existed prior to service, including:

* injuries to both knees while playing football in 1953
* usual childhood diseases
* history of sinus trouble since 1954
* history of asthma since 1954
* appendectomy in 1952
* left shoulder injury while playing football in 1955

2.  He underwent a physical examination in conjunction with his hardship discharge in November 1959 and his EPTS, Not in Line of Duty conditions were noted.  The military physician cleared him for discharge and he was honorably discharge on 25 November 1959.  

3.  There is no evidence in the form of medical records or other documentary evidence to support his claim of injuries received on 4 October 1959.  Likewise, there are no records and he provides none to support his claim of injuries related to lumbar spine, bilateral knees, heart condition, traumatic brain injuries, and other medical issues.  

4.  For historical purposes, the Army has an interest in maintaining the integrity of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.   

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  Absent convincing, independent, and verifiable evidence to the contrary, it is presumed that his military service records including the available medical records were correct at the time and there is an insufficient evidentiary basis to change them. 

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)                                         AR20140015397



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ABCMR Record of Proceedings (cont)                                         AR20140015397



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