RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 JANUARY 2004                  
	DOCKET NUMBER:   AR2003089919

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 his December 1972 Department of the Army Form 199 (Physical Evaluation Board Proceedings) be corrected by checking item 10 on the form to show that his disability “is” the result of an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law.

2.  The applicant states that the block should have been checked because he was permanently retired from the Army due to medical reason.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
20 December 1972.  The application submitted in this case is dated 1 April 2003. 

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 limitation 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 entered active duty on 26 March 1968 and served in Vietnam between August 1968 and August 1969.  He was originally released from active duty on 15 May 1970, his scheduled separation date.

4.  In May 1972 the Army Board for Correction of Military Records noted that the applicant had been admitted to Walter Reed General Hospital in March 1970 with “the chief complain of low back and left lower extremity pain….”  The Board proceedings indicated that the applicant underwent an operation on his back and that L5-S1 disc was removed and he was ultimately discharged to duty on 
10 April 1970, given 30 days of convalescent leave and a 6-month physical profile.

5.  The May 1972 proceeding noted that the applicant was granted a 100 percent disability rating by the Department of Veterans Affairs in July 1971 retroactive to May 1970.  The Board ultimately concluded that the applicant was physically unfit to perform his duties at the time of his release from active duty in May 1970 and corrected his records to show that he was retired from active duty on 16 May 1970 and his name placed on the Temporary Disability Retired List (TDRL).  Because the action was accomplished by the Board no Department of the Army Form 199 (Physical Evaluation Board Proceedings) was completed and hence no determination was made concerning whether the applicant’s injuries were incurred as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war.

6.  On 20 December 1972 the applicant’s cases was reviewed by an informal Physical Evaluation Board.  A November 1972 medical narrative summary noted that the applicant had 6 to 7 months of low back pain with left leg radiation beginning in June 1969.  The specific cause of the back pain was not defined in the applicant’s narrative summary.

7.  The December 1972 Physical Evaluation Board (PEB) concluded that the applicant’s name should be removed from the TDRL and permanently retired with a 40 percent disability rating.  However, the PEB did not check either the “is” or “is not” block of item 10 on the Department of the Army Form 199.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.

8.  On 23 February 1973 the applicant’s name was removed from the TDRL and he was permanently retired.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  As part of its findings, the PEB will make an entry in item 10 of the Department of the Army Form 199 to reflect its determination as to whether the disability resulted from injury or disease received in the line of duty as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if the disability incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict, or a direct causal relationship exists between the armed conflict or the incident or operation, and the disability.  Additionally, if the unfitting disability was caused by an instrumentality of war and was incurred in the line of duty during a period of war as defined by law, it may be considered to have been a direct result of armed conflict.  Then, as now, Army Regulation 635-40 stated that an entry would be made in item 10 if the Department of the Army Form 199 placing him on the TDRL did not indicate a finding.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that an entry in item 10 of the applicant’s Department of the Army Form 199 was omitted.  Because there was, in effect, no Department of the Army Form 199 completed recommending placement of the applicant on the TDRL, no “combat related” finding was made.  Hence a finding should have been accomplished when the final PEB document was completed.

2.  Although the evidence shows that the applicant’s unfitting condition was his lower back pain, there is no evidence, and the applicant has not provided any, which confirms that his lower back pain was the direct result of armed conflict or that it was caused by an instrumentality of war during a period of war defined by law.  In the absence of such evidence, there is no basis for checking the “is” block in item 10 of his Department of the Army Form 199.

3.  Although there is no evidence which would justify checking the “is” block in item 10, it would be appropriate to check the “is not” block in order that the form be correctly completed in accordance with the provisions of Army Regulation 635-40.

BOARD VOTE:

__LEM __  __RWA _  __PHM __  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by checking the “is not” block of item 10 on the applicant’s November 1972 Department of the Army Form 199.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to checking the “is” block of item 10 on his November 1972 Department of the Army Form 199.

		____Lana E. McGlynn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003089919	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.