MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 MAY 2002                   
	DOCKET NUMBER:   AR2002067949

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Thomas Lanyi		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:  Physical disability retirement.  

He states that his discharge because of hardship should be changed to a medical discharge so that he can get a military identification card.  He states that he has had trouble with his right leg ever since he was discharged from the Army.  

He encloses copies of medical records with his request.  Those records show that he was treated for lower back pain on 21 January 1974.  He was treated because of a sharp pain to his right foot on 29 April 1974.  He was treated for an injury to his right ankle on 2 May 1974, again on 10 May 1974, and also on        13 May 1974, with the examining physician stating that there was no swelling or discoloration to his ankle, but that it was slightly sprained.  He was treated for mild congestion on 16 May 1974, and for a cold on 4 June 1974.  He was treated for severe coughing and throat irritation on 14 November 1974, and for a chest cold and congestion on 18 November 1974.  On 24 April 1975 the applicant was treated for an injury to his right hand.  On 28 April 1975 he was seen because of his right hand injury.  

Those records also contain a report of medical examination dated 10 July 1975 which shows that the applicant was medically qualified for discharge.  The applicant indicated on that report that he was in good health.

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:

The applicant enlisted in the Army for three years on 16 April 1974, completed training and in September 1974 was assigned to an armored battalion in Germany.

The applicant went on emergency leave to the United States and was attached to the 7th Infantry Division at Fort Ord, California effective on 26 June 1975 for the purpose of applying for a hardship discharge.

On 7 July 1975 the applicant applied for a hardship discharge because of the medical condition of his wife.  His request was approved.  He was discharged under the provisions of Army Regulation 635-200, chapter 6, on 14 August 1975. He had 1 year, 3 months, and 29 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 of that regulation provides, in pertinent part, for the separation of personnel because of genuine dependency or hardship. An application for such separation will be approved when a service member can substantiate that his situation or immediate family's situation has been aggravated to an excessive degree since enlistment, that the condition is not temporary and that discharge will improve the situation.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, 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.  

Army Regulation 635-40, also provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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, to indicate that he was medically unfit at the time of his discharge.  To the contrary, evidence exists to show that he was medically fit for discharge; consequently, there is no basis correct his record to show physical disability retirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 August 1975, the date of his discharge .  The time for the applicant to file a request for correction of any error or injustice expired on 14 August 1978.

The application is dated 11 January 2002 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

__JLP  __  __BJE __  __TL____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067949	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020521	
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.	108.00	
3.	360	
4.		
5.		
6.