MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         19 November 1998     
	DOCKET NUMBER:   AC98-08404

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

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	if any)

APPLICANT REQUESTS:  In effect, medical discharge or retirement.  He states that he served more than 2 years of active service and therefore did not qualify for an “EPTS” discharge.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 6 January 1972.  Upon successful completion of basic and advanced individual training he was assigned to Germany in September 1972.

A medical evaluation board summary, dated 21 November 1973, notes the applicant had a history of kidney problems prior to his entry on active duty but was allowed to enlist following an “appraisal of his clinical evaluation”  which “was normal by all accounts.”  The summary indicated the applicant had no problems until August 1973 when “he was seen for low posterior chest pain [and] CVA pain....”  At the time he gave “the doctor a history of 3/4 of a functioning kidney remaining.”  Following evaluation it was determined that the protein level in his urine exceed acceptable standards, that the “condition obviously existed prior to service and that there [was] no evidence of service aggravation.”  A medical evaluation board recommended separation based on the medical condition which existed prior to his entry on active duty.

On 3 December 1973 the applicant request voluntary separation from active duty based on a physical disability which existed prior to his entry on active duty “and which is neither incident to nor aggravated by my military service.”  His request was approved an on 4 February 1974 the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 9.

Army Regulation 635-40, chapter 9, in effect at the time, provided for the “expeditious discharge of enlisted personnel who...are unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.”

Subsequent to his separation, in 1975, the VA denied service connected disability for his kidney condition noting “the evidence does not indicate aggravation of the vet’s pre-service bilat kidney condition.”

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 4 February 1974, the date he was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
4 February 1977.

The application is dated 16 April 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_FNE____  __TAP___  __BJE___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director