MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           24 APRIL 2003                   
	DOCKET NUMBER:   AR2003083695

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Terry L. Placek		Member	
	Mr. Robert Duecaster		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, disability separation or retirement.  The applicant states that he sustained an injury to his knee "while on inactive service" but also received treatment at Fort Knox, Kentucky while on active duty because of "aggravation" of his knee injury.  He states that the injury ultimately resulted in his discharge, but he received no monthly benefit for his "service aggravated disabilities."  He submits no evidence in support of his request.

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:

He enlisted in the United States Army Reserve on 10 April 1978 and was discharged for the purpose on enlisting in the Regular Army on 4 June 1978.  He entered active duty on 5 June 1978.  His enlistment physical examination was not in records available to the Board.

However, a medical treatment form notes that medical personnel saw the applicant on 16 June 1978 while undergoing training at Fort Leonard Wood, Missouri.  The treatment record indicated that the applicant complained of left knee pain and stated that he had sustained a trauma to his knee approximately 
2 years earlier.  The applicant was advised to continue taking aspirin, apply a "balm" at night, and given strengthening exercises.  

The applicant successfully completed basic combat training and in August 1978 was assigned to Fort Knox, Kentucky for advanced individual training.

On 4 October 1978 the applicant was again seen by medical personnel who concluded that the applicant suffered from posttraumatic arthritis, which resulted when the applicant fell on cement in 1977 and injured his knee.  The medical document notes that the applicant reported knee pain before entering the service and that the pain persisted while undergoing training.  The evaluating physician concluded that the applicant's condition existed prior to his entry on active duty (EPTS) and that it was not service aggravated.  The evaluating physician recommended the applicant be separated from the military.  A medical evaluation board concurred with the findings and recommendation of the evaluating physician.  As a result of the findings and recommendation the applicant requested separation from the military.  

On 25 October 1978 the findings and recommendation of the medical board and the applicant’s request were approved.  On 30 October 1978 he was discharged under the provisions of Army Regulation 635-200, paragraph 5-7 for failing to meet procurement medical fitness standards.  

Army Regulation 635-200, paragraph 5-7, then in effect, stated that members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be discharged when medical proceedings, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authorities within 
4 months of the member’s initial entrance on active duty, which would have permanently disqualified him for entry into the military service had it been detected at that time.

Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnoses or should have been diagnosed.  Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.  

The applicant’s discharge for failing to meet procurement medical fitness standards was appropriate and the applicant has not provided any evidence which supports his contention that his knee injury was aggravated during his active military service.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 30 October 1978, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 30 October 1981.

The application is dated 2 December 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 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__RVO__  __TLP___  __RD ___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003083695	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030424	
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.