MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 OCTOBER 2003                  
	DOCKET NUMBER:   AR2003088126

	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. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Larry C. Bergquist		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, that his records be corrected to show that he was retired by reason of physical disability.  He states he did not have any preexisting medical condition and that his physical condition was "a direct result of [his] military service."  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 and entered active duty on 21 November 1969.  According to his enlistment physical examination he exceeded the Army's weight standards but was permitted to enlist with a waiver for his overweight condition.

On 10 February 1970 he requested discharge from the military and stated that he felt he "was erroneously enlisted since [he did] not meet medical fitness standards.”  On 25 February 1970 the applicant underwent a medical board.  The evaluating physician noted that "in spite of being on a low-calorie diet he remains overweight and did not meet the weight requirements for enlistment in the Army." It also noted that at the time of his enlistment, the applicant "consented to supervision or treatment for obesity…but now refuses any supervision or treatment in an attempt to bring his weight down to the standards for enlistment.” The evaluating physician concluded that the applicant was medically unfit for enlistment but that he did meet retention standards in accordance with Chapter 3, Army Regulation 40-501.  The evaluating physician recommended the applicant be separated.  The applicant acknowledged receipt of the medical board proceedings and did not contest the recommendation.

On 5 March 1970 the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-9a(2), for failing to meet medical fitness standards at the time of enlistment.  He had less than
4 months of creditable service at the time of his enlistment.

Army Regulation 635-200, paragraph 5-9a(2), provided for the administrative separation of individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment when a medical board established that a medical condition was identified by appropriate military medical authority within 4 months of the member’s initial entrance on active duty, which did not disqualify him for retention in the military service under the provisions of Chapter 3, Army Regulation 40-501.

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.

The evidence available to the Board confirms that the basis for the applicant’s separation was his overweight condition, which was documented as having existed prior to his entrance on active duty.  He has presented no evidence to the contrary.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 March 1970, the date the applicant was discharged and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on
5 March 1973.

The application is dated 26 March 2003 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 three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__CLG __  __EWL__  __LCB__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003088126	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031030	
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.