RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           13 MAY 2004                  
	DOCKET NUMBER:   AR2003097829

	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 the doctor had never seen his inflamed legs.  He goes to bed on the sofa.  He has not worked even part time because of his legs.  He was referred to a specialist; however, is too poor to afford him.  If he stands on his legs they will get to the point where he cannot walk. 

3.  The applicant provides a 17 November 2000 statement from a doctor in Westerville, Ohio.  That physician stated that the applicant was inducted into the service when he was experiencing Osgood-Schlatter's disease.  His service aggravated the disease to the point where he now suffers severe degenerative joint disease (DJD) of the knees, and where the only medical therapy available would be a total knee replacement.  There is no conservative medical treatment that would help his condition.  He stated that when he deteriorates to the point where he could no longer walk, the only recourse would be to remove both knees and replace them with artificial knees.  He stated that it is with reasonable probability that the military service and its associated requirements directly and causally accelerated his Osgood-Schlatter's disease to the point where he has severe DJD of the knees for which there is no medical therapy available.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 November 1971.  The application submitted in this case is dated 6 June 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 was inducted into the Army on 23 March 1970.  His record of induction shows that he claimed Osgood-Schlatter's disease of the knee.  He was found medically acceptable for induction with a physical profile serial            of 1 1 1 2 1 1.       

4.  The applicant completed basic combat training at Fort Bragg, North Carolina, and training as a clerk at Fort Sill, Oklahoma.  He remained assigned at Fort Sill after completion of training as a battery clerk with an artillery unit.  He was promoted to pay grade E-4 on 26 December 1970. 
5.  On 3 March 1971 the applicant successfully completed the physical combat proficiency test.  On 14 June 1971 the applicant's commanding officer recommended that the applicant be promoted to pay grade E-5.  He indicated that his physical profile serial was 1 1 1 1 1 1; however, the personal data sheet prepared in connection with the recommendation showed a physical profile serial of 1 1 3 1 1 1.  There is no explanation of the discrepancy.  

6.  The applicant was released from active duty for the convenience of the government on 22 November 1971.  He had 1 year and 8 months of service.   

7.  The applicant's medical records are not available to the Board.

8.  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.

9.  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.

10.  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.  Absent evidence to the contrary the applicant was medically qualified for retention or separation.  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.
  
2.  Notwithstanding the physician's statement that he provides with his request, there is no evidence that he had any unfitting medical condition during his period of service or at the time of his release from active duty in November 1971.

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.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 November 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on    21 November 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	AR2003097829	
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.