RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            15 JANUARY 2004                  
	DOCKET NUMBER:   AR2003091242

	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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. William D. Powers		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 physical disability retirement or separation.  He also states, "I was drafted at age 17 without a parent's consent.  I would like to have the record straight."

2.  In effect, the applicant states that he had surgery because of a pectus excavatum (undue depression of the sternum) when he was 15.  During basic training the right side of his sternum tore loose. He was looking for help when it was brought to the attention of medical personnel.  He did not want to be discharged because he could not get a good job because of physical examinations he could not pass.  He was hurriedly discharged from the Army.  He did have a problem with his chest.  He is disabled and attempting to obtain a service connected disability [rating] at $807.00 a month because he did have it [chest problems] when he was drafted at age 17.  He has been in primary care in Seattle.      

3.  The applicant provides a certified copy of his birth certificate, originally signed and certified on 21 September 1957, showing his date of birth as 20 January 1953.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on             15 October 1970.  The application submitted in this case is dated 5 May 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 15 October 1970.  His record of induction indicates that he volunteered for induction.  It shows his date of birth as 20 January 1952.  That record also contains the remark in item 16 (Physical Defects), "(pecto-escavating chest) Surgery 1968."  On 19 October 1970 he completed and signed DD Form 398 (Statement of Personal History), indicating his date of birth as 20 January 1952; however, the last digit "2" of that year appears to be heavily inked over another digit, perhaps "3," although it is difficult to tell.  The documents contained in the applicant's records, to include the documents which he signed, all show his date of birth as 20 January 1952.

4.  The applicant was assigned to Fort Jackson, South Carolina, for basic combat training.  On 18 November 1970 the applicant was discharged from the Army under the provisions of Army Regulation 635-200, Chapter 5, because he did not meet medical fitness standards at the time of his induction.  The record of his discharge proceedings is not available to this Board.  He had 1 month and 4 days of service.  His DD Form 214 (Report of Transfer or Discharge), which he signed attesting to its accuracy, shows his date of birth as 20 January 1952.         

5.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty. Paragraph 5-11 provides for the early separation of soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within   6 months of the soldier’s initial entry on active duty, which would have permanently or temporarily disqualified him for entry into the military service had it been detected at that time, and which does not disqualify him for retention in the military service under the provisions of Army Regulation 40-501, Chapter 3.    
6.  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.

DISCUSSION AND CONCLUSIONS:

1.  The record clearly indicates that the applicant had surgery on his chest prior to his entry into the Army.  The applicant himself states that he had medical problems prior to his induction.  Absent evidence to the contrary, the applicant was properly discharged because he did not meet the medical fitness standards at the time of his induction.  He has not provided any evidence to the contrary.  His disability was not incurred while on active duty.  Consequently, he is not entitled to physical disability retirement or separation.   

2.  Whether or not the applicant was born in 1952 or in 1953 [as he states] is not readily apparent in spite of the certificate he furnishes with his request.  What is apparent is the fact that at the time of his induction he provided information to     
various officials, both prior to and after his induction, that he was born in 1952.  
Thirty-three years after his discharge, the applicant now wants to set the record straight.  These proceedings will be filed in his records; however, there is neither error nor any action required by the Board in this matter.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 18 November 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 November 1973.  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

__MKP__  __ALR __  __WDP__  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.  

		__Margaret K. Patterson___
		        CHAIRPERSON

INDEX

CASE ID	AR2003091242	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040115	
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.