MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 October 2000                  
	DOCKET NUMBER:   AR2000046014

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Ms. Carol Jo Suiter		Member	
	Mr. John E. Denning		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his earlier appeal to correct his records by changing the reason for separation to physical disability retirement. 

APPLICANT STATES:  In effect, that he sustained a fracture of the first neck vertebra while on active duty.  Doctors told him at the time “that people with a C1 burst Jefferson fracture never walk again.”   He submits a recent radiology report to substantiate his case. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 13 June 2000 (COPY ATTACHED).

The applicant’s submission is new evidence that requires Board consideration.

The radiology report indicates that a recent CT scan revealed, among other findings that “There is incomplete fusion of the anterior aspect of the C1 ring.  This may represent a prior nondisplaced fx or a fusion anomaly.  There is no evidence of soft tissue swelling or acute pathology in this region.”  The recorded impression relating to this finding was “Probable prior C1 ‘burst’ Jefferson fx.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The radiological report is noted but it does nothing to demonstrate that the applicant was disabled at the time of separation.  He was found fit at a separation physical examination.
 
2.  Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looks at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document may not state that the Board considered the merits of the case, the display of the pertinent details from applicant’s service record, the circumstances of the case and the regulations governing the issue tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years.   

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JDM__  ___CJS  _  __JED___  DENY APPLICATION

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

INDEX

CASE ID	Ar2000046014	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.