MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:       19 November 1998      
	DOCKET NUMBER:   AC98-11190

	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:  Medical separation or retirement.  He states, in effect, that at the time of his separation in 1952 he was not informed of the various options available to him but has always felt that he was improperly separated.  He notes that had he been properly informed he would have requested a medical board and feels confident  that his medical records would “bear out that it would have been in [his] best interest to have met such a board.”

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 initially entered active duty in May 1946 and served until he was honorably discharged on 28 May 1949.  On 1 June 1949 he reenlisted.  A 1949 reenlistment physical examination notes no medical problems and his conduct and efficiency ratings during his initial tour of duty were all excellent.

The applicant continued to serve in an excellent manner although he was issued a permanent profile for asthma on 7 October 1952.  On 24 November 1952 the applicant underwent a separation physical examination.  The evaluating physician noted the applicant’s asthma and permanent profile but found the applicant “qualified for military duty-general services” and indicated that his asthma was seasonal and mild.  On 26 November 1952, at the conclusion of his enlistment contract the applicant was released from active duty in pay grade E-6.

Subsequent to his separation the VA noted the applicant suffered from chronic mild bronchial asthma which was control by medication.  In June 1953 he was awarded a 30 percent disability rating for bronchial asthma.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Army Regulation 40-501, at paragraph 3-3a, also provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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 26 November 1952, 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 
26 November 1955.

The application is dated 24 September 1997 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