MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           13 SEPTEMBER 2001
	DOCKET NUMBER:   AR2001058662

	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. Fred N. Eichorn		Chairperson	
	Mr. John E. Denning		Member	
	Mr. Terry L. Placek		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 he be medically retired or discharged.  He states that he was accepted for enlistment in the Army without any medical limitations.  However, he notes that his shoulder condition was seriously aggravated by the “rigorous physical activity and physical contact” during basic training.  In support of his request, he cites a portion of 50 FR (Federal Register), page 34458, dated 26 August 1985, concerning the use of “reasonable doubt” by the Department of Veterans Affairs in adjudicating disability claims.

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 7 July 1980.  

On 11 August 1980 a physician determined the applicant’s history of a right shoulder injury in 1975 followed by surgery to remove calcified loose bodies in 1979 and 1980 was medically disqualifying.  The applicant had complained of pain in his “right shoulder and scapula day and night with increased symptoms with increased activity.”  The evaluating physician recommended the applicant be separated from the military.  A medical evaluation board concurred with the findings and recommendation of the evaluating physician.  As a result of the findings and recommendation the applicant requested separation from the military.  

On 12 August 1980 the findings and recommendation of the medical board and the applicant’s request were approved.  On 19 August 1980 he was discharged under the provisions of Army Regulation 635-200, paragraph 5-7 for failing to meet procurement medical fitness standards.  

Army Regulation 635-200, paragraph 5-7, then in effect, stated that members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be discharged when medical proceedings, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authorities within 4 months of the member’s initial entrance on active duty, which would have permanently disqualified him for entry into the military service had it been detected at that time.

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 diagnoses 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.  

The extract of 50 FR, submitted by the applicant in support of his request, establishes the basis for the use of “reasonable doubt” in determining disability entitlements by the VA.  It notes that “by reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  It is a substantial doubt and one with the range of probability as distinguished from pure speculation or remote possibility.  It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded.”

The applicant’s discharge for failing to meet procurement medical fitness standards was appropriate and the applicant has not provided any evidence which supports his contention that his prior service shoulder injury was aggravated during his less than 2 months of active military service.

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 19 August 1980, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 19 August 1983.

The application is dated 11 June 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

__FNE   _  __JED___  __TLP __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001058662	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010913	
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.