MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 August 2000     
	DOCKET NUMBER:   AR2000035339

	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 W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Edwin S. Castle		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, in effect, that he was released from active duty because he indicated to a medical board that he had “been emotionally unstable for many years.”  He notes that the board should not have taken that statement as fact because of his mental condition at the time.  He states that physical examinations conducted prior to his entry on active duty found him “fit for duty” and that he did not experience any problems until several months after his entry on active duty.  He asks that the Board re-evaluate the 1952 medical board’s determination so that he can receive “service privileges” such as exchange and commissary privileges and use of medical services.

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 was inducted and entered active duty on 19 February 1952.  His pre-induction and induction physical examination found the applicant medically qualified for “general service.”

In May 1952 the applicant was hospitalized for acute sinusitis.  His attending physician recommended a neuropsychiatric consultation noting the applicant “showed immature reactions and hysterical type behavior when discharged to duty.”  A 24 May 1952 neuropsychiatric evaluation noted that the applicant “feels pain in the “brain” nervousness, [and] forgetfulness….”  He indicated that he could not remember when he entered the Army, how old his parents were, or what his birth date was.  He noted that his mother and father both suffered from “some kind of nervous attacks.”

It was concluded that the applicant suffered from “anxiety reaction, chronic, moderate, manifested by tremulousness, occasional headaches, and many other psychosomatic complaints” brought on by stress from “minimal, routine Army service.”  The condition was determined to have existed prior to his entry on active duty.

A physical evaluation board, convened in August 1952, concluded the applicant’s condition rendered him unfit, that it existed prior to his entry on active duty (EPTS), and recommended he be released from active duty.  The applicant was present during the physical evaluation board proceedings and elected to remain silent when given the opportunity to speak on his own behalf.  The applicant was honorably discharged on 30 August 1952.

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 30 August 1952, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 30 August 1955.

The application is dated 15 December 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

__cmf___  __jns___  ___esc__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000035339	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000803	
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.