MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            30 March 2000                  
	DOCKET NUMBER:   AR1999027835

	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.  

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Ernest W. Lutz, Jr.		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, disability retirement or separation.  He states that he “was taken into service with a medical condition (ulcers) [and] told the recruiter…[who told him] not to worry they had good hospitals that would take care of [him].”  In support of his request he submits a copy of a VA decision denying him disability benefits.

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 10 June 1980.  He apparently was hospitalized shortly after his entry on active duty as his record contains one “duty status” report indicating his duty status changed from “hospital” to “present for duty” on 24 June 1980.  

Although the applicant’s records contain no medical documents they do contain a portion of a Medical Board Proceedings recommending the applicant be administratively separated for failure to meet procurement medical standards.  The documents are date in early July 1980.  One document, a recommendation for separation dated 3 July 1980, notes the applicant did not “complete any week of training.”

On 17 July 1980 the applicant was honorably discharged under the provisions of Army Regulation 635-200 for failing to meet medical fitness standards at the time of enlistment.  He had 1 months and 8 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 diagnoses 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.

Subsequent to his separation, in 1999, the VA noted that “a gastrointestinal disorder clearly and unmistakable preexisted service” and that “there is no evidence of an increase in severity of the veteran’s preexisting gastrointestinal disorder during service.”
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 17 July 1980, the date the applicant 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 17 July 1983.

The application is dated 4 May 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

___bje__  ____hof_  ___ewl_  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999027835	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000330	
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.	142.00	
2.		
3.		
4.		
5.		
6.