MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           26 July 2001                   
	DOCKET NUMBER:   AR2001054545

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Eric N. Andersen		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 medical records be corrected to show that he incurred a service connected injury when he fell off a tank while serving in Germany in 1953.  He states that when he was given his separation physical examination, he could barely walk.  He informed the physician that his difficulty in walking was due to his falling off a tank.  The physician stated that he would need the applicant’s medical records to record the injury on his physical examination, but locating and retrieving the applicant’s health records could take 12 to 14 weeks.  The applicant, being released early from his induction, opted not to wait for the medical records and accepted the physical examination without any comment on his injury.

In support of his application he submits numerous medical records showing that he has been treated for low back pain, neck pain, shoulder pain, and pain in his arms and hands.  Many of the physicians stated that there was evidence of an old back injury.  One physician stated “I had treated this patient beginning 5/25/94 as a result of an accident which occurred on 5/20/94 . . . My history relates that the low back pain had been present since a previous injury sustained in an accident while in the 	U.S. Army in 1953 in which he suffered low back injury . . .”

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 could not be located and are presumed to have been destroyed in the fire at the records repository in St. Louis, Missouri, in 1973.

He was inducted on active duty on 26 February 1953.  On 1 January 1954 the applicant was given a separation physical examination at Ft. Buchanan, Puerto Rico.  In the report of examination the physician stated “Complaints of painful joints both hands occasionally, no significance.”  The physician also noted that the applicant had flat feet and well healed scars of his left upper arm, medial and right little finger.  The applicant was determined qualified for general service.

On 11 June 1954 the applicant was honorably released from active duty and transferred to the USAR to complete his 8-year statutory military service obligation.  The DD Form 214, Report of Separation From the Armed Forces of the United States, shows that the applicant was drafted, was promoted to pay grade E-3, and served in an armored cavalry unit in Germany.  He was awarded the National Defense Service Medal and the Army of Occupation Medal (Germany Clasp).  He had served 1 year, 1 month and 16 days of active duty.

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 11 January 1954, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 11 January 1957.

The application is dated 9 February 2001 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.  He states that he was injured while on active duty but has absolutely no evidence, which would support that contention.  Medical examinations taken over 40 years after an alleged injury which show old injuries don’t establish the date the injury was incurred.  The Board also notes that, based on the applicant’s statement to the Board, he had an opportunity to have his injury included on his separation physical examination but declined to remain on active duty to have that accomplished.  That would be indicative that any injury that the applicant had incurred was not of the severity to warrant the inconvenience of remaining on active duty.  This appears to have been an accurate assessment, with the applicant having no apparent problems with his back until he injured it in 1994, over 40 years after his release from active duty.

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

__rvo ___  ___hof __  ___ena__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001054545	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010726	
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.	124.03	
2.		
3.		
4.		
5.		
6.