RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            December 4, 2003                  
	DOCKET NUMBER:    AR2003088884

	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	
	Ms. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		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 that his records be corrected to show that he was medically discharged instead of showing that his induction was voided.

2.  The applicant states that he was inducted into the Army and that he was willing to serve his country.  He states that he became ill while in the process of fulfilling his duties.  He continues by stating that he was wrongfully advised by those in charge and that he was discharged from the Army through no fault of his own.  He states that he was denied medical benefits and medical service of any kind because his illness was not service connected.  He believes that that he should have been medically discharged with honorable conditions.

3.  The applicant provides a letter from himself to the Department of Veterans Affairs (DVA) dated 11 April 2002, explaining what he believes to have been the events that took place while he was in the Army.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of records to show that he was medically discharged on 20 November 1968.  The application submitted in this case is dated 29 March 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.  He was inducted into the Army on 3 May 1968 at Fort Jackson, South Carolina.  He successfully completed his training as a food services apprentice.

4.  On 16 October 1968, the applicant submitted a request for separation under the provisions of Army Regulation 635-200, chapter 5, by reason of erroneous induction.  In his request, he indicated that he understood that although he had been informed that he did not meet procurement medical fitness standards at the time of induction, he could request retention in the Army to complete the period of service for which he was inducted.  He declined to apply for retention.

5.  The applicant was placed on a physical profile on 21 October 1968.  The attending physician determined that he was medically qualified for duty with permanent assignment limitations.  His limitations included no assignment to isolated areas where definitive medical care was not available; no prolonged or repeated exposure to extreme cold, dampness or dust, to include field duty; and no gas chamber exercises.

6.  On 29 October 1968, the applicant again submitted a request for discharge due to erroneous enlistment.  In his request, he indicated that he was submitting medical board proceedings, a statement of request for separation and his medical records.

7.  The appropriate authority approved the applicant’s request for discharge on 15 November 1968.  Accordingly, on 20 November 1968, the applicant was honorably released from military control, under the provisions of Army Regulation 635-200, chapter 5-9, by reason of voidance of induction, based in his failure to meet medical fitness standards.  He had completed 6 months and 18 days of total active service.

8.  In a letter to the DVA dated 11 April 2002, the applicant stated that before he was inducted into the Army and during his entrance examination, the Selective Services Board was aware of his history of chronic asthma.  He stated that he had not suffered chronically with asthma since the age of 16 and that after being exposed to intense mandatory physical and chemical training during basic training he began to suffer with acute upper respiratory infections and had to be hospitalized.  He went on to state that he was hospitalized on more than one occasion and that he was also treated at sick call several times.  

9.  In the letter, he stated that he was informed by medical personnel that he could get out of the service because his medical condition was being aggravated by his remaining in the service. He stated that during the climate of the times he did not question the status or validity of his discharge, which he now believes in an injustice.  He further stated that after being discharged, he was able to visit the VA hospital for his medical needs until about 1979, when he was denied treatment because his illness was not service connected.  He concluded his letter by stating that he believes that he has been denied rightful benefits and taken advantage of by those that were charged with the duty of protecting his best interest.

10.  Army Regulation 635-200, chapter 5-9, then in effect, provided for the discharge of personnel who did not meet the medical fitness standards for enlistment or induction.  It provided, in pertinent part, that commanders specified in section VI, chapter 2, were authorized to order discharge of individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment.  Eligibility for discharge was governed by a medical board finding that the individual had a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time, and did not disqualify him from retention in the military service under the provisions of chapter 3, AR 40-501.  Under today’s standards, his service would have been uncharacterized.

DISCUSSION AND CONCLUSIONS:

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

2.  The reason and authority for his discharge appear to be appropriate considering all the facts of the case.

3.  The applicant submitted two requests for discharge and he acknowledged that he understood that he could have requested to continue through the period of service for which he was inducted even though he did not meet procurement medical fitness standards at the time of induction.  He clearly wanted to be discharged from the service and at that time he was unconcerned that his induction would be voided based on his failure to meet procurement medical fitness standards.  

4.  Additionally, under today’s standards he would not meet the criteria for a medical discharge and the character of his service would be uncharacterized.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 20 November 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 November 1971.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KL___  __AR___  __WTM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		Walter T. Morrison
					    CHAIRPERSON

INDEX

CASE ID	AR2003088884	
SUFFIX		
RECON		
DATE BOARDED	2003/12/04	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19681120	
DISCHARGE AUTHORITY	AR .635-200, CH 5	
DISCHARGE REASON	932	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  939	144.9907.0000/IMPROPER INDUCTION	
2.		
3.		
4.		
5.		
6.