MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            8 August 2000     
	DOCKET NUMBER:   AR2000038163

	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. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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, physical disability retirement or separation vice separation based on a medical condition which existed prior to his entry on active duty (EPTS).  The applicant states that he had fully recovered from his "leg perthes disease" which he had suffered from as a child, prior to entering the Army.  He notes that he fell from the top of a truck full of footlockers "because the soldier helping [him] pulled one out from the bottom."  He states that he was told he would receive a disability rating and compensation but discovered after his separation what "EPTS" stood for.  In support of his request he submits two statements from individuals who confirm he was "in a body cast for a hip problem" when he was young but was, in effect, physically fit at the time he entered the Army.

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 3 August 1961.  There are no service medical records in files available to the Board.

On 12 March 1962 the applicant requested separation indicating that he had "been notified that, based upon preliminary findings, I am considered unfit for retention in the military service on account of a physical disability which is considered to have existed prior to August 3, 1961, and which appear to be not incident to, or aggravated by, prior or subsequent [to] military service."  He also acknowledged in his request that he understood that his separation would be "without disability retirement or disability severance pay…."

The applicant's request was approved and on 9 April 1962 he was honorably discharged by reason of a physical disability which existed prior to his entry on active duty.

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 9 April 1962, 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 
9 April 1965.

The application is dated 21 February 2000 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

___sk___  ___jea__  ___reb__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000038163	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
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.