BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160006424 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. 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. BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160006424 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ::x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160006424 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 correction of his military service records to show that he sustained injuries to his head, neck, and shoulder. 2. The applicant states he sustained traumatic injuries to his head, neck, and shoulder in July 1969 as a result of an accident during training at Fort Lewis, Washington. a. He states medical officials lost/misplaced the x-rays/scans of the injuries and also the medical records associated with diagnosis and treatment. b. He also states the Department of Veterans Affairs (VA) is trying to pretend that the records never existed. He has filed numerous VA claims/appeals for his right shoulder limitation of movement to include nerve damage, bilateral hearing loss, bilateral tinnitus, traumatic brain injury (TBI), and hand tremors. The VA has not allowed bilateral hearing loss or bilateral tinnitus, recommended further review/examination for TBI, and ignored/dismissed the other conditions. He adds that he suffers from migraine headaches, the effort in pursuing the medical records has greatly tired and depressed him, and the appeals processed (since 2012) has taken its toll on him. c. He states that locating the medical records will allow the VA to establish service connection for the injuries/conditions. He adds that all pertinent records are on file in the VA appeal/claim that he references in his application. 3. The applicant provides no additional documentary evidence in support of his application. 4. On 21 August 2017, the Director, Case Management Division, Army Review Boards Agency, notified the applicant that he must provide a copy of the medical documents that support his issue(s). There is no evidence of record that shows the applicant provided a response or any medical records. 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. A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant enlisted as a cadet in the U.S. Army Reserve (USAR) Control Group (Reserve Officers' Training Corps (ROTC)) on 23 September 1968 for a period of 6 years. 3. Sixth U.S. Army ROTC Instructor Group Senior Division, San Jose State College, San Jose, CA, Letter Orders Number 16, dated 23 June 1971, honorably discharged the applicant from the USAR Control Group (ROTC) on 3 June 1971 to accept a commission in the U.S. Armed Forces. 4. The applicant was appointed as a Reserve commissioned officer of the Army on 4 June 1971, in the rank of second lieutenant (Medical Service Corps). He was ordered to active duty on 18 October 1972. 5. The applicant's DA Form 66 (Officer Qualification Record) shows in – * item 10 (Assignment Limitations) – no entries * item 14 (Physical Status) – PULHES – "211111," 24 March 1971 6. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty on 18 October 1972, was honorably released from active duty on 17 January 1973 based on expiration of active service commitment, and transferred to the USAR Control Group (Annual Training). He had completed 3 months of net service this period; 1 year, 4 months, and 14 days of other service; and 1 year, 7 months, and 14 days of total service. 7. An AGUZ FL 286a (Statement of Physical Condition for Promotion), dated 7 June 1974, shows the applicant acknowledged, "I consider myself sound and well. I was considered physically qualified for military service at the time of accomplishment of my last official medical examination on or about: '18 December 1972' at: 'Fort Sam Houston, TX' and there has been no change in my medical fitness. To the best of my knowledge and belief, I have no physical defects or conditions, except as noted below, which would preclude the performance of military duty." (There are no noted defects or conditions (i.e., the area is blank).) The applicant signed the form on 14 June 1974. 8. A review of the applicant's available military service records failed to reveal any documents/records related to a July 1969 accident or injury. 9. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 16 November 2017. a. The ARBA senior medical advisor reviewed the applicant's military personnel records and VA medical records. He noted the applicant's (paper) Service Treatment Record (STR) was not available for review from the VA or from the National Personnel Records Center, St. Louis, MO. b. A review of the available documentation by the ARBA senior medical advisor found no evidence of a medical record or documentation related to the July 1969 matter under review. He also found no evidence of a medical disability or condition which would support a change to the applicant's separation action. 10. On 16 November 2017, the applicant was provided a copy of the advisory opinion to allow him the opportunity (14 days) to submit comments or a rebuttal. There is no evidence of record that the applicant provided a response. REFERENCES: Army Regulation 40-66 (Medical Record Administration and Healthcare Documentation) prescribes policies for preparing and using medical reports and records. Chapter 3 (Preparation of Medical Records), Section II (Medical Record Entries), paragraph 3-4, shows that entries will be made in all inpatient, outpatient, service treatment, dental, Army Substance Abuse Program, and occupational health records by the health care provider who observes, treats, or cares for the patient at the time of observation, treatment, or care. An individual's request for amendment/correction of a medical record may be denied, if it is determined that the protected health information that is subject to the request is accurate and complete, or it was not created by a covered entity. DISCUSSION: 1. The applicant contends that his military service records should be corrected to show he injured his head, neck, and shoulder in July 1969. 2. The applicant's military STR (medical records) are not available for review. a. There is no evidence of record that shows the applicant sustained injuries in July 1969 during his service in the USAR Control Group (ROTC). b. He served on active duty from 18 October 1972 through 17 January 1973. There is no evidence of any unfitting condition(s) at the time. c. A review of his available military service records failed to show he had any physical limitations that precluded his active duty or reserve service. 3. The sincerity of the applicant's comments regarding injuries sustained in July 1969 is not in dispute. However, he provides no contemporaneous documentary evidence to substantiate any injuries to his head, neck, and/or shoulder. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006424 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006424 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2