RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:         6 April 2006
      DOCKET NUMBER:  AR20050011770


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Brenda K. Koch                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the reason for his separation
be changed.

2.  The applicant states, in effect, that while stationed at Fort Ord,
California waiting to go overseas, a carton fell on his head causing damage
to his left eye.  He claims he was hospitalized and subsequently received
an honorable discharge.  He claims that he was recently informed that he
should have received compensation for his disability based on the situation
that resulted in his discharge.  He further states that files at the
National Personnel Records Center (NPRC) show he was discharged because
there was something wrong before he entered service, which he claims is
completely wrong.

3.  The applicant provides a statement from his spouse and a partially
legible separation document in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 October 1943.  The application submitted in this case
is dated
30 July 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military 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 the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.  This considered using
reconstructed records that consist of the separation document provided by
the applicant, a Certification of Military Service (GSA Form 6954) and an
Office of the Surgeon General (OTSG) Hospital Admission Record for 1943.
4.  The applicant's separation document shows he was inducted into the Army
and entered active duty on 20 November 1942, and that he served until 16
October 1943, at which time he was honorably discharged under the
provisions of Section II, Army Regulation 615-360, by reason of disability.


5.  The OTSG Hospital Admission Record on file shows the applicant was
admitted to a medical treatment facility at Fort Ord, California in August
1943.  This medical report confirms he was diagnosed and treated for
Psychoneurosis, Neurasthenia.  It also shows that the applicant's condition
was not incurred in the line of duty, and that the medical condition
existed prior to the applicant's entry into service.  It further shows his
final disposition was discharge by reason of disability that existed prior
to service.  There are no medical treatment records available that show the
applicant ever incurred a disabling head injury while serving on active
duty.

6.  Army Regulation 615-365, in effect at the time of the applicant's
discharge, set forth the policy for the separation of enlisted personnel.
Section II outlined the policy and procedure for separating members for
disability.  It outlined the statutory provisions for pensions and
indicated that a pension was authorized for a disability resulting from
personal injury or disease contracted in the line of duty, or for
aggravation of a preexisting injury or disease contracted or suffered in
the line of duty, when such disability was incurred or aggravated by
military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the reason for discharge outlined in
the OTSG Hospital Admission Record on file is not consistent with the
reason for his discharge outlined on his separation document, and the
supporting documents submitted were carefully considered.  However, the
regulatory authority cited on his separation document (Section II, Army
Regulation 615-360) is not inconsistent with the information contained on
the OTSG Hospital Admission Record.  All disability discharges would have
been accomplished using the authority of the cited regulation, to include a
disability discharge based on a preexisting condition.  However, the cited
regulation clearly stipulates that pensions were only authorized for
disability resulting from personal injury or disease contracted or
aggravated in the line of duty.

2.  Absent any medical evidence to the contrary, there is a presumption
that the information contained in the OTSG Hospital Admission Record is
correct.  This document confirms the applicant was treated for
Psychoneurosis, Neurasthenia, a medical condition that existed prior to his
entering the Army, and that his condition was incurred in the line of duty.
 As a result, although separated for a disability, he would not have been
authorized to receive a pension.
3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 October 1943.  Therefore, based on
the date the Board was established, 2 January 1947, the time for him file a
request for correction of any error or injustice expired on 1 January 1950.
 He failed to file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PMS_  __CD ___  ___BKK _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Paul M. Smith    __
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050011770                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/04/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1943/10/16                              |
|DISCHARGE AUTHORITY     |AR 615-365                              |
|DISCHARGE REASON        |Disability, EPTS                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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