MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 AUGUST 2002                  
	DOCKET NUMBER:   AR2002071668

	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. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able 		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:  In effect, physical disability retirement or separation.

That her original DD Form 214 shows that she was medically discharged.  That original form was either lost or stolen.  When she requested a copy from the National Personnel Records Center, the enclosed copy was provided, showing that her character of service was uncharacterized.  She did not receive disability severance pay, but she was medically discharged.  She provides a copy of Entrance Physical Standards Board (EPSBD) Proceedings dated 27 March 1991.   
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 five years on 20 November 1990.  On         6 September 1990 prior to her enlistment, she underwent a medical examination. The report of that medical examination shows numerous medical problems to include a pituitary-ovarian dysfunction corrected by oral contraception, and pes planus asymptomatic.  Her physical profile serial was 3 1 1 1 1 1 and she was not qualified for enlistment.  However, a waiver was granted by the Recruiting Command Surgeon General on 14 October 1990 allowing her to enlist.

The applicant was assigned to Fort Jackson, South Carolina, for basic training.  

The applicant’s medical records show that she was treated for problems with her feet on six different occasions from January through March 1991.  

Entrance Physical Standards Board Proceedings of 27 March 1991 show that the applicant had bilateral arch pain and had been treated with arch supports without relief.  She had sharp pain in both feet at all times but worse with running and marching.  The board found a decrease in arch height, and subtalar joint pronation was noted on stance.  Pain was elicited with palpation medial long arch bilateral.  X-rays revealed bilateral pes planus.  The board recommended that the applicant be separated from the Army for failure to meet medical procurement standards.  Her condition was considered to have existed prior to her service (EPTS) and not permanently aggravated by her service.  Her physical profile serial was noted as 1 1 3 1 1 1.  The medical authority approved the findings.    

On 29 March 1991 the applicant concurred with the proceedings and requested to be discharged from the Army without delay.  On 3 April 1991 the separation authority directed that the applicant be discharged.  

The applicant was discharged on 15 April 1991 under the provisions of Army Regulation 635-200, paragraph 5-11.  Her DD Form 214 shows that she was discharged because she did not meet procurement medical fitness standards – no disability.  

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the early separation of soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty.  Although a soldier in such circumstance has a right to request retention, an individual has no right to be
retained.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entry on active duty, which would have permanently or temporarily disqualified her for entry into the military service had it been detected at that time, and which does not disqualify her for retention in the military service under the provisions of Army Regulation 40-501, chapter 3.  The character of service for a soldier separated under this paragraph will normally be honorable, or an uncharacterized description of service if in entry level status (within the first 180 of active duty) at the time separation processing is commenced.

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 her discharge for failure to meet procurement medical standards was in error or unjust, nor is there evidence to indicate that she was medically discharged.  As such, there is no basis to correct her record to show physical disability retirement or separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 15 April 1991, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 15 April 1994.

The application is dated 22 March 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

__MMD  _  __RWA__  __CLG__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071668	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020820	
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.	108.00	
2.		
3.		
4.		
5.		
6.