MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            7 June 2000                  
	DOCKET NUMBER:   AR1999022215

	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. Carl S. W. Chun .		Director	
	Ms. Gale J. Thomas .		Analyst	

  The following members, a quorum, were present:

	Mr. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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, that his records be corrected to show his disability was aggravated by military service, and that his DD Form 214, item 38 (Remarks) be changed by deleting the statement which makes reference to his disability existing prior to his entry on active duty and that it was not aggravated by military service.  In support of his request the applicant submits copies of his discharge certificates.

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:

On 15 August 1945, he was honorably discharged from the United States Coast Guard.

On 10 November 1950, he was inducted into the Army of the United States for a period of 2 years.  He completed basic training at Fort Ord, California, was transferred to Fort Houston, Texas in January 1951, and in April 1951 was shipped overseas to the Third Medical Battalion in Korea.  

On 12 October 1951, Medical Evaluation Board (MEB) proceedings diagnosed the applicant with: herniation, nucleus pulposus L-5, S-1, manifested by moderate, severe low back pain; caused by injury to back while pulling on an anchor chain in 1948 while serving as a Merchant Marine; Line of Duty: No, EPTS (existed prior to service).  The MEB recommended that the applicant be separated for chronic low backache which existed prior to entry on active duty and was not aggravated by active duty.

On 20 December 1951, the applicant requested a discharge for the convenience of the Government because it had been determined that he was physically disqualified for retention in the military.  He acknowledged in his request that he understood his separation would be without disability retirement or severance pay, and waived his rights to any further hearings. 

On 21 January 1952, he was honorably discharged after serving 1 year, 2 months and 12 days of active Federal service.

Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.

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 21 January 1952, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 21 January 1955.

The application is dated 26 January 1999 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

___mkp__  ___esc__  ___jps__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999022215	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
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. 110.00		
2.		
3.		
4.		
5.		
6.