RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 December 2005 DOCKET NUMBER: AR20050001775 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. Prevolia A. Harper Analyst The following members, a quorum, were present: Mr. Bernard P. Ingold Chairperson Mr. Donald W. Steenfott Member Mr. Edward E. Montgomery 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 that his records be corrected to show that his disability did not exist prior to service (EPTS), that it was service aggravated, and, in effect, that he be granted a medical discharge. 2. The applicant states, in effect, that while at Fort Devens, Massachusetts, he was tortured during jungle warfare camp and taken to the hospital for treatment. He further states that his medical records were completely falsified. 3. The applicant provides a self-authored letter in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 8 November 1966. The application submitted in this case is dated 21 January 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 enlisted in the Army on 25 August 1965 for a period of 4 years. He completed the required training and was awarded the military occupational specialty (MOS) 05H20 (Morse Interceptor). He served in Germany from 16 May 1966 to 3 November 1966. The highest rank he attained was specialist four. 4. The applicant’s military record does not contain his service medical records and the applicant did not provide any medical records or evidence. 5. A DA Form 8-118 (Medical Board Proceedings), dated 3 October 1966 showed that a Medical Evaluation Board (MEB) convened at the U.S. Army General Hospital in Frankfurt, Germany as a result of the applicant’s chronic low back difficulties. 6. The MEB proceedings stated that the applicant was diagnosed with spondylolisthesis [stress fracture in one of the bones (vertebrae) that make up the spinal. The column stress fracture weakens the bone so much that it is unable to maintain its proper position and the vertebra starts to shift out of place]. 7. The MEB determined that the applicant was medically unfit and that his condition existed prior to service (EPTS). The Board further determined that the applicant’s condition was not aggravated by his service and directed that he be returned to duty for administrative separation. 8. On 3 October 1966, the applicant requested discharge for a condition that existed prior to his entry on active duty. The applicant declined the option to have his case reviewed by the Physical Evaluation Board and acknowledged that he would be discharged without disability retirement or disability severance pay. The applicant authenticated this document with his signature. 9. On 6 November 1966, the applicant was honorably discharged after completing 1 year, 2 months, and 14 days of service. Item 11c (Reason and Authority) contains the entry "AR 635-40A, "SPN" [Separation Program Number] 277 “Physical Disability by Medical Board.” 10. The applicant provided a self-authored letter, in which he stated, in effect, that, during jungle warfare training, he was kicked in his back a number of times which he believes contributed to his back problems later. He continued that after he returned to the barracks he felt a tingling sensation go down his spine. He explained that shortly thereafter, he started experiencing pain from his neck down to his spine and legs. 11. The applicant further explained that he was taken to the hospital and given a shot for pain. The applicant stated that he later requested medical records which falsely show that was admitted with a cold, fever, and low back pain. The applicant also stated that his medical records showed a toe infection and appear to cover up facts. The applicant concluded that his claim was denied by the Veterans Administration (VA) despite treating him in 1970. 12. Army Regulation 635-40A, paragraph 33, in effect at the time, stated that members of the Army ordered into the active military service for a period in excess of 30 days, and members of the National Guard and the United States Army Reserve, including trainees under the RFA 55 (Reserve Forces Act of 1955) program ordered to ACDUTRA (Active Duty for Training) in excess of 30 days, and who are determined to be unfit by a medical board for retention on active duty by reason of physical or mental disqualifications which are not incurred or aggravated while entitled to receive basic pay, may request either discharge or relief from active duty or elect an appearance before a physical evaluation board. 13. Army Regulation 635-40, in pertinent part, states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service 14. Title 38, U. S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. DISCUSSION AND CONCLUSIONS: 1. The applicant’s claim of a service-connected injury and falsified medical records have been carefully considered and found to be without merit. 2. The action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, determines service connection and assigns disability ratings as it sees fit. 3. The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits. 4. The applicant did not contest the MEB findings that his medical condition existed prior to his service. He acknowledged that he understood his rights included consideration of his case by a Physical Evaluation Board. However, he elected not to exercise that right. He also understood that he would be separated by reason of an EPTS physical disability. Therefore, there appears to be no error in the narrative reason for his separation as shown on his DD Form 214. 5. There are no medical records for the Board to review and the applicant provided no medical records or other evidence to support his claim that his medical records were falsified. Therefore, there is insufficient evidence upon which to base correcting these records. 6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 November 1966; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 November 1969. The applicant did not 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 __BPI___ __DWS__ __EEM__ 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. ____ Bernard P. Ingold ____ CHAIRPERSON INDEX CASE ID AR20050001775 SUFFIX RECON YYYYMMDD DATE BOARDED 20051206 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.