MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           01 NOVEMBER 2001                   
	DOCKET NUMBER:   AR2001056489

	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. Walter T. Morrison 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Curtis L. Greenway		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:  That he be medically retired or discharged.  He states, in effect, that he should have been medically discharged because his tuberculosis was aggravated by his military service and determined to have occurred “in the line of duty.”  He submits no evidence in support of his request.

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 initially enlisted in the Army National Guard in 1950 and on 5 August 1952 enlisted in the Regular Army.  He served nearly 15 months overseas where he was awarded the Korean Service Medal and the Combat Infantryman Badge.

In the processing of this application, an advisory opinion was provided by the Board’s Medical Advisor.  He noted in his advisory opinion that the applicant was hospitalized in March 1954 due to a “productive cough and fever.”  The opinion noted that the applicant underwent “an extensive exam to rule out tuberculosis” and that all of his “sputum test were negative for active tuberculosis….”  The Medical Advisor stated that documents available to the Board indicated that the applicant’s 1954 chest x-ray was “identical to his [the applicant’s] pre-induction 
x-ray of 1950” and that medical authorities ruled that the applicant’s tuberculosis had existed prior to his entry in service and was not “in line of duty.”  The Board’s Medical Advisor concluded that the applicant’s condition was not service aggravated, that it therefore did not qualify for service connected disability, and that because his tuberculosis was inactive he was fit to remain on active duty.  The applicant was provided an opportunity to comment on the advisory opinion but did not respond.

The applicant’s June 1954 separation physical examination notes that the applicant was “qualified for general service” and confirms that his tuberculosis was determined to be “line of duty no.”

On 25 June 1954 the applicant was discharged under the provisions of Army Regulation 615-365 and issued a general discharge.

Army Regulation 615-365, then in effect, provides for the discharge of enlisted personnel for the convenience of the government.  Among other reasons, it provided for the separation of enlisted soldiers with a physical or mental defect or disability who elected discharge for the convenience of the government when it had been established by proper medical authority that the defect or disability existed prior to entrance on active duty or was not aggravated while on active duty.

Army Regulation 635-40 states that disability compensation is not an entitlement. It is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurring immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further 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.

There is no evidence, nor has the applicant provided any, which confirms that he was unable to perform his military duties at the time of his discharge or that his medical condition was aggravated by his military service.  As such there is no basis for disability retirement or separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 June 1954, the date the applicant was discharged and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
25 June 1957.

The application is dated 16 April 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.

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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__WTM__  __AAO__  __CLG __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056489	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011101	
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.