RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            13 MAY 2004       
	DOCKET NUMBER:   AR2003097249

	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.

2.  The applicant states that at the time of his last enlistment he was unable to complete the physical tests.  A lieutenant stated that he was 8 pounds overweight and therefore unfit for duty.  He was hurt [injured], not obese.  He deserves a medical disability retirement because he was injured. 

3.  The applicant provides a copy of a 27 April 2001 medical report.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 March 1985.  The application submitted in this case is dated       3 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 Reserve for 6 years on 12 June 1971.  He entered on active duty on 1 October 1971 and was released from active duty and returned to his Army Reserve unit on 16 June 1972 after completion of training at Fort Belvoir, Virginia as a power generator equipment repairman.  

4.  On 8 May 1977 the applicant reenlisted in the Army Reserve for 2 years.  On  3 March 1979 he reenlisted in the Army Reserve for 6 years.

5.  On 20 March 1983 he completed the basic course for Reserve component noncommissioned officers at Fort Sam Houston, Texas.  

6.  The applicant's enlisted evaluation report (EER) for the period September 1982 through August 1983 shows that he passed the Army Physical Readiness Test (APRT).    

7.  A 24 October 1983 report of medical examination shows that the applicant was medically qualified for retention with a physical profile serial of 1 1 1 1 1 1.
There were no injuries noted on that report, nor the report of medical history that he furnished for the examination.
8.  The applicant attended annual training with his Reserve unit at Aberdeen Proving Grounds, Maryland from 5 August 1984 through 18 August 1984.

9.  The applicant's EER for the period September 1983 through October 1984 shows that he passed the APRT.

10.  On 25 August 1984 the applicant was entered into the Army weight control program.  He was 7 pounds overweight. 
 
11.  On 1 March 1985 the applicant's commanding officer requested that the applicant be discharged on 2 March 1985, his ETS (expiration of term of service). The applicant was discharged from the Army Reserve on 15 March 1985.

12.  In a 27 April 2001 medical report, a physician indicated that the applicant had injured his back at work on 30 May 1984 while pushing a gate, that he had no surgery for his back, but surgery was currently being recommended.  The doctor went on to describe the applicant's current medical condition, diagnosed his condition as diffuse degenerative disc disease with spinal stenosis and facet disease aggravated by the 1984 injury.  He stated that the applicant sustained a lumbar strain injury in May of 1984.  

13.  Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBs), and that they are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEB include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty. 

14.  Army Regulation 40-501 provides information on medical fitness standards for enlistment, retention, and related policies and procedures.  Chapter 9 sets basic policies and procedures for medical examinations.  It covers those examinations used to medically qualify individuals for entrance into and retention in the Army Reserve.  Normally, Reservists who do not meet the fitness standards will be transferred to the Retired Reserve or discharged.  

15.  Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.
16.  Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

17.  Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations. 

18.  Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc. 
  
19.  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.

20.  Army Regulation 635-40, paragraph 2-2b, as amended, 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 was physically fit for retention in October 1983 as evidenced by the report of medical examination.  Evidence indicates that he passed the APRT in August 1984 and that he attended annual training with his Reserve unit in August 1984.  There is no evidence to indicate that the applicant sustained an injury while performing annual training, inactive duty, etc.  He was discharged on his ETS in March 1985, and absent evidence to the contrary continued to perform his duties until his discharge.  There is no evidence and the applicant has not submitted any to show that he was physically unfit at the time of his discharge.        

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

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 March 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         14 March 1988.  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	AR2003097249	
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.