MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           28 March 2002                  
	DOCKET NUMBER:   AR2001063245

	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	
	Mr. W. W. Osborn, Jr..		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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:  That the reason for his separation from active duty be changed to physical disability due to bronchial asthma.  He states, in effect, that his medical records justify the requested relief.  He dates the discovery of the alleged error or injustice as the date of the discharge and states “See Attached” as the reason the Board should find it in the interest of justice to excuse the failure to file a timely request.  He submits a copy of part of his medical records to substantiate the 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:

Following a period of Army Reserve (USAR) in the Delayed Entry Program, he enlisted in the Regular Army and entered active duty on 12 August 1981.  On 1 August 1984, he was separated with an honorable characterization of service and transferred to the USAR Control Group (Reinforcement) due to the completion of his term of service.  He subsequently affiliated with the active Reserve and was assigned to various troop program units.  He was discharged from the USAR effective 24 June 1993.

There are few significant service medical records contained in the available records.  However, the report of his enlistment medical examination does not indicate any lung abnormalities.  There is no associated Report of Medical History (Standard Form 93).

The copies of medical records submitted by the applicant show that on 26 August 1981 he sought medical care at 0125 hours for difficulty breathing.  He reported a history of asthma.  He was placed on medication and continued to receive medical attention for asthma and associated problems throughout his enlistment. The statement on the Standard Form 93 associated with the applicant’s 23 July 1984 separation medical examination reads, “My health is good now, I have been suffering from slight asthma attacks during the last 3 months, I have some medication which eases the asthma spasms.”  The copy of the report of the separation medical examination, itself, is incomplete.

The applicant submitted a Standard Form 93 for a 19 August 1989 USAR medical examination in which he disclosed a history of an asthma attack in 1988. On 28 March 1990 the applicant was permanently excused from running because of exercise induced asthma.  He was allowed to walk or bicycle, as desired. 

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

The regulation also provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 1 August 1984, the date of his separation from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 1 August 1987.

The application is dated 17 July 2001 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

__FNE__  ___LE  __  __TL____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063245	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020328	
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.	108.04	
3.		
4.		
5.		
6.