RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            15 JUNE 2004                  
	DOCKET NUMBER:   AR2003097909

	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. Fred Eichorn		Chairperson	
	Mr. Larry Bergquist		Member	
	Ms. Eloise Prendergast		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.  In effect, the applicant requests that his record be corrected to show that he has 20 qualifying years of service for retired pay at age 60.  He requests that he be granted the necessary retirement points to be entitled to retired pay.

2.  The applicant states that he was carried [by his unit] as absent sick for two full years and discharged without notice, a trial period, or a proper medical examination.  He states that his medical records were turned in, but successfully hidden for 14 months.  He was denied the opportunity to earn points for retirement for 35 months.   

3.  The applicant provides a time line regarding his service in the Texas Army National Guard and the matters relating to his request; a copy of a paper titled "Retirement Appeal," in which he states that he lost retirement points while awaiting a Medical Evaluation Board, and indicating that he was discharged      90 days after the MEB; and a copy of a document prepared by himself, concerning his retirement points, correspondence from his unit, and his comments on the correspondence.  He provides other documents depicted herein.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 1 March 1988.  The application submitted in this case is dated        19 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 evidence available are those documents submitted by the applicant.  His complete military records are not available. 

4.  The applicant was a member of the Texas Army National Guard.  A National Guard Bureau Form 22 shows that he was a member of the Indiana Army National Guard who was discharged in August 1978 to reenlist in the Army National Guard of another state.  He had over 10 years of service for pay.    

5.  On either 23 or 24 October 1982 the applicant injured himself at the National Guard armory in El Paso, Texas, when he attempted to catch a Soldier who fell from a tent storage rack.  He sustained a hernia injury to his left side and was sent to William Beaumont Army Medical Center for treatment.  His injury was in line of duty.  Pay vouchers submitted indicate that he was disabled because of his injury and requests for incapacitation pay were submitted.  

6.  The applicant injured himself on 13 April 1985 when he was bounced off the seat of a military truck in which he was riding.  He sustained an injury to his right side.  He did not report the injury until the next day, at which time he was sent to William Beaumont.  Medical records show that the applicant was treated on      14 April 1985 at William Beaumont because of his injury.  His injury was in line of duty.

7.  A letter from William Beaumont dated 26 July 1985 shows that the applicant was returned to his home in a convalescent status to be followed on an outpatient basis because of a right hernia, and that his approximate period of convalescence was from 11 June 1985 to 9 August 1985.

8.  Pay vouchers show that the applicant was paid for training from April through July 1985.

9.  A 23 August 1985 individual sick slip shows that the applicant complained of complications from a previous hernia.  On 26 August 1985 the applicant's commanding officer requested authority for non-emergency treatment for the applicant because of his injury.  

10.  A medical record prepared by a civilian physician of the Vista Hills Medical Center in El Paso shows that the applicant developed a chest discomfort on       20 December 1985, went to the emergency room, and then was admitted to the intensive care unit.  He had various tests and underwent a cardiac catheterization and coronary angiography.  On 27 December 1985 he underwent bypass surgery.  Postoperatively he did fairly well and was discharged from the hospital on 30 December 1985.  Another medical record prepared by the doctor who performed the surgery indicates that the applicant had a double bypass operation on 23 December 1985.  

11.  On 9 January 1986 the applicant's surgeon provided his doctor information concerning the surgery, and stated that he anticipated that the applicant would have a full and satisfactory recovery.

12.  On 22 January 1986 the applicant's commanding officer, in requesting that a medical records review be initiated to determine if the applicant was medically fit for retention, indicated that the applicant's civilian employer was contacted and    that it was assumed that he would be incapacitated for six months.  

13.  In a 4 February 1986 statement, the doctor who performed the surgery on the applicant stated that the applicant had been to his office for his follow up visits and he opined that the applicant was ready to start work on 18 February 1986.

14.  On 14 February 1986 the applicant's commanding officer informed the applicant that his attendance at the scheduled drill assembly on 21-23 February 1986 would not be possible solely based upon his civilian doctor's determination that he was physically fit for light duty, in that a military doctor would be the only person that could make that determination.  He stated that he had requested a medical review board.  He informed the applicant that the unit attendance records would be annotated to show him as being carried absence leave-sick until a medical determination had been made.  

15.  On 18 February 1986 the applicant's commanding officer requested that the applicant provide copies of all civilian documentation concerning his illness and surgery for inclusion in a packet to be forwarded to the state surgeon.  A            27 February 1986 letter to the applicant from a training noncommissioned officer (NCO) of the Texas Army National Guard indicates that he again requested the applicant furnish his civilian medical records.  The records were apparently forwarded on 1 March 1986.

16.  On 5 May 1986 the applicant's commanding officer informed the applicant that separation action was pending because he was no longer actively participating [in training], and directed that he turn in all items of clothing and equipment.  On 5 May 1986 the above-mentioned training NCO certified that he mailed notification of the separation action to the applicant on that date.  Also, on 5 May 1986, the applicant's commanding officer requested that the applicant be discharged for misconduct. 

17.  An official of the Texas Army National Guard requested certain documents pertaining to the applicant, and stated that upon receipt, a request for medical examination for retention would be forwarded to Brooke Army Medical Center.

18.  On 13 March 1987 the applicant was requested to complete appropriate items on a report of medical examination and report of medical history for forwarding to a medical board.

19.  On 18 April 1987 the applicant's commanding officer requested funds for incapacitation pay for the applicant for the period 7 March 1987 to 6 June 1987. 

20.  On 19 April 1987 the applicant was hospitalized at William Beaumont Army Medical Center.  On 24 April 1987 the applicant signed a disability counseling statement.  On 27 April 1987 the applicant's commanding officer and a military doctor completed an incapacitation certificate, certifying that the applicant was disabled from 6 March through 1 June 1987 and could not perform his military duties.  On 29 April 1987 the applicant's commanding officer forwarded an incapacitation payroll on the applicant to the Texas Army National Guard.

21.  A military pay voucher indicates that a request for incapacitation pay for the period 6 March 1987 to 1 June 1987 was forwarded and that the incapacitation certificate was attached.  That voucher indicates that the applicant was fired from his civilian employment on 10 April 1987.

22.  On 5 November 1987 the applicant was informed that a fitness board had been scheduled at Camp Mabry in Austin on 20 November 1987.  The date of that board was later changed to 2 December 1987.

23.  In an 18 November 1987 memorandum for the Adjutant General's Department, Texas Army National Guard, the applicant's commanding officer stated that the unit had been attempting to board the applicant for a double bypass on 22 December 1985, and that the applicant had not attended unit drills since 17 November 1985 due to his medical situation under civilian care.  He stated that the applicant had been under care for a hernia caused during training on 13 April 1985 and proper procedures had been followed for his incapacitation payroll for periods designated by medical health care personnel.

24.  The applicant was discharged from the Army National Guard and as a Reserve of the Army on 1 March 1988 under the provisions of National Guard Regulation 600-200, paragraph 8-26y [medically unfit for retention].   
 
25.  In response to his request for retired pay, on 13 February 2001 the Army Reserve Personnel Command at St. Louis, informed him that an audit of his military records shows that he completed 18 years, 7 months, and 12 days of qualifying service, and accordingly, was ineligible to receive retired pay.

26.  A 2 March 2001 chronological statement of retirement points verifies the above-mentioned service for retired pay.  That statement also shows that he earned 36 points for the retirement year 7 September 1985 through 6 September 1986, 103 points (88 of which were for active duty) for the following retirement year ending on 6 September 1987, and 7 points (membership only) until his discharge on 1 March 1988.  

27.  The documents that the applicant submits with his request do not include any medical documentation, e.g., MEB, relative to his discharge.

28.  National Guard Regulation 600-200 provides for the discharge of Soldiers from the Army National Guard and as a Reserve of the Army.  Paragraph 8-26y states that a Soldier will be discharged if he is medically unfit for retention.  Army Regulation 135-178 states that when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness, he will be discharged unless granted a waiver or eligible for transfer to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  On 14 February 1986 the applicant's commanding officer informed him that he could not attend training pending a determination by a medical review board.  On 5 May 1986 his commanding officer requested that the applicant be discharged for misconduct, apparently because he was not attending training.  His training status from then until the end of his retirement year cannot be determined.  The applicant earned only 36 points for the retirement year beginning on 7 September 1985 and ending on 6 September 1986, not enough for a qualifying (good) year of service.      

2.  The applicant was apparently incapacitated and receiving incapacitation pay, at least from 6 March 1987 until 1 June 1987; consequently, not attending training.  His training status after that date until his discharge cannot readily be determined.  The applicant did earn sufficient points for a good year of service for the retirement year ending on 6 September 1987.  Eighty-eight points were for active duty according to the chronological statement of his retirement points.    
 
3.  The applicant's commanding officer, on 18 November 1987, indicated that the applicant had not attending training since 17 November 1985 because of his medical situation; however, that information contradicts the information contained in his chronological statement of retirement points.   

4.  Notwithstanding his contentions, there is no evidence that his medical records were hidden.  There is evidence, however, that he was denied the opportunity to attend training because of his medical condition; however, the period for which he did not attend drills because of his medical condition cannot be determined, because less than three months later his commanding officer requested that he be discharged for misconduct for not attending training.

5.  The documents submitted by the applicant in some respects are contradictory and are incomplete, not telling a full story.  The evidence concerning the applicant's medical and his training status is inconclusive.  The applicant, however, has not provided convincing evidence that an injustice has been done to him.  There is insufficient evidence to grant the applicant's request.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 March 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on         30 April 1991.  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

__FE____  __LB ___  __EP____  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.

		_____Fred Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR2003097909	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040615	
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.	136.00	
2.		
3.		
4.		
5.		
6.