APPLICANT REQUESTS: In effect, reconsideration of his previous request to correct his records by showing that he was retired due to physical disability. APPLICANT STATES: In effect, that the advisory opinion that the Board obtained stated there was only one recorded clinic visit for his back when he actually was seen several times. NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 8 February 1997 (COPY ATTACHED). The applicant’s contention that the Board’s original decision was based on erroneous information constitutes new argument. In support of his claim the applicant submits his separation physical which states; recurrent back pain, patient seen multiple times without success, placed on exercise with no good results, lower back, no prolonged sitting. He also submits a radiology consultation of the lumbar spine dated 1 July 1993 from the VA Medical Center, Tacoma, WA Army regulation 15-185, paragraph 10c provides, in pertinent part, that reconsideration of a Board decision will be made when additional evidence or other matter including, but not limited to factual allegations or arguments, that were not previously available to the Board has been submitted. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded: 1. The law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that to be separated for physical disability a soldier must be physically unable to perform duty and that the presence of a medical condition that was acquired or aggravated while entitled to basic pay does not necessarily require an medical evaluation board or qualify an individual for physical disability. 2. Furthermore, the MOC points out that the applicant served honorably for more than 13 years and his final separation medical examination found him physically fit for separation. 3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. There is no right to a medical evaluation board. Individuals are referred to a medical evaluation board when, in the opinion of their attending military doctors, a medical condition may make them incapable of performing duty. 4. Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file. It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit. The Board has never denied an application simply because it was not submitted within the required time. 5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision. 6. In view of the foregoing, there is no basis for granting the applicant's request. DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. BOARD VOTE: ________ ________ ________ GRANT ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION Loren G. Harrell Director