MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            16 March 2000                  
	DOCKET NUMBER:   AR1999031135

	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.  

	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch		Member	
	Mr. Christopher J. Prosser		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 a medical retirement or separation.  The applicant states that he was discharged because a medical board determined that his right knee condition existed prior to his entry in the service (EPTS), but he feels his condition was aggravated by the service, and that information concerning trauma to his knee was left out.  The applicant submits no documentation in support of his claim. 

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:

On 10 February 1971, he enlisted in the Regular Army for a period of 3 years.  He completed basic training at Fort Knox, Kentucky, and subsequently was assigned to Fort Jackson, South Carolina for advanced individual training.

The facts and circumstances pertaining to the applicant’s separation are not in the available records, however on 19 July 1971, the applicant was honorably discharged under the provisions of Army Regulation 635-40, chapter 9.  His Report of Separation indicates he had 5 months and 10 days of creditable service.

Army Regulation 635-40, chapter 9, in effect at the time, provided for the expeditious discharge of enlisted personnel who were unfit for retention on active duty by reason of physical disability which was neither incurred nor aggravated during military service.

There is no evidence in the available records nor did the applicant provide documentation to substantiate his claim that his condition was aggravated by 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 19 July 1971, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 19 July 1974.
The application is dated 30 August 1999 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___jlp___  ___owt___  __cjp___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999031135	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
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. 142.00		
2.		
3.		
4.		
5.		
6.