RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           13 MAY 2004                  
	DOCKET NUMBER:   AR2003096395

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Mr. Mark Manning		Chairperson	
	Mr. Richard Dunbar		Member	
	Ms. Mae Bullock		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests physical disability retirement or separation.

2.  The applicant states that he joined the service with a curvature of his spine.  He was injured while in the service, sustaining a muscle sprain – a blown disk.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 August 1971.  The application submitted in this case is dated      8 September 2003.  

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army on 3 July 1966, completed training and in December 1966 was assigned to Korea as an engineer equipment maintenance repairman.  He reenlisted for 4 years on 8 September 1967.  In December 1967 he was assigned to Aberdeen Proving Ground in Maryland and trained as an vehicle repairman.  Thereafter, he went to Fort Bragg, North Carolina and a unit of the 3d Infantry Division in Germany.  In August 1969 he was assigned to a maintenance company in Vietnam.  He completed his tour, and in July 1970 was assigned to an artillery battery in Korea.  

4.  The applicant's service is characterized by numerous acts of misconduct, for which he received nonjudicial punishment under Article 15, Uniform Code of Military Justice.  In April 1971, while serving in Korea, his commanding officer recommended that he be barred from reenlistment.  On 8 June 1971 the recommendation was approved.  He returned to the United States in August 1971 and was released from active duty on 29 August of that year in the grade of private E-2.

5.  The applicant's medical records are unavailable to the Board, other than a     6 August 1971 report of medical examination.  That report shows that the applicant was medically qualified for separation.

6.  On 5 August 1982 the applicant enlisted in the Army National Guard for 1 year in pay grade E-3.  He was reduced for inefficiency on 9 December 1982, discharged from the Army National Guard with a general discharge and reassigned to the Army Reserve Control Group at St. Louis.  On 24 September 1984 he was discharged from the Army Reserve with a general discharge.       
   
7.  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.

8.  Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

9.  Army Regulation 635-40, then in effect, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 6 August 1971 report of medical examination indicates that he was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

2.  Additionally, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         28 August 1974.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MM___  __RD ___  ___MB __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		_____Mark Manning_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003096395	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040513	
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.