MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 November 2001
	DOCKET NUMBER:   AR2001060617

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 a line of duty (LOD) determination be made on an alleged incident that occurred on 20 August 1983.

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 were unavailable.  Documents provided by the applicant reveal:

He is a retired US Army Reserve (USAR) officer.  In 1983, he was a lieutenant colonel and the commander of the 316th Quartermaster Battalion (USAR), Stigler, Oklahoma.

On Saturday, 20 August 1983, the applicant and two other soldiers completed a 4-mile run as part of a physical training (PT) test.  Part way through the run, the applicant experienced difficulty - arm and chest pain, sweating, clamminess - and had to stop.  A homeowner gave him water to drink and also allowed him to cool off with a garden hose.  He then completed the run and was transported back to the USAR building where he lay on the concrete floor until he felt normal.

The applicant states that he told his unit technician, Mr. McClellan, to do a LOD on him, but Mr. McClellan informed him that because he [applicant] was not on active duty, a LOD could not be done.  Mr. McClellan advised the applicant to see a civilian doctor.

The applicant claims to have suffered a heart attack during that PT run on 20 August 1983.  As proof, he provides a letter from his doctor stating that "this patient [applicant] had a myocardial injury that day, but did not follow up."  This letter is dated 20 November 1997, more than 14 years after the event.  The applicant also provides reams of medical documents from 1987 and later that address his heart condition.

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 20 August 1983, the date of the incident for which the applicant is requesting an LOD.  The time for the applicant to file a request for correction of any error or injustice expired on 20 August 1986.

The application is dated 26 July 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.

Prior to reaching this determination, the Board looked at the applicant's entire submission.  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 3-year time limit.

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

__MHM_  __RKS___  __JLP___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001060617	
SUFFIX		
RECON		
DATE BOARDED	20011120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	122.0000	
2.		
3.		
4.		
5.		
6.