APPLICANT REQUESTS: In effect, disability separation or retirement. He notes that his enlistment physical examination reflected the extensive scarring on his right leg but his condition was aggravated after entering the service. 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: He entered active duty on 28 November 1966 and arrived for basic training at Fort Jackson, South Carolina on 5 December 1966. His pre-induction physical examination, conducted on 18 October 1966, noted a large scars on his right thigh and calf from an automobile accident in 1955. The examining physician indicated the scars were well healed with no deformity or limitation of motion. On 14 December 1966, less than 10 days after arriving at Fort Jackson, the applicant complained to medical personnel of “twisted & painful muscles” in his left thigh as well as pain and cramps in his right thigh. On 30 January 1967 the applicant voluntarily requested separation from the Army “for physical reason which existed prior to [his] enlistment in the Army....” He indicated he wanted to be present at the medical board hearing in his case. The medical board concluded that the applicant’s extensive scarring on his right leg was the result of a compound fracture sustained in an automobile accident when the applicant was 10 years old and that as a result of the old fracture his range of motion in his right hip was restricted. The board that his condition existed prior to his entry on active duty and was not aggravated by his period of service. The board recommended he be separated from the service “for a condition existing prior to service” under the provision of Army Regulation 635-200. The board’s findings and recommendations were approved and on 3 February 1967 he was honorably discharged. At the time of his separation he had 2 months and 6 days of active Federal service. Subsequent to his separation, in 1969, the VA denied service connected disability for his leg condition noting that the “Veteran’s right leg condition existed prior to service and...there was no evidence of record to superimposed disease or trauma sufficient to have caused permanent aggravation over and beyond natural progress of the pre-service condition....” Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed. Army Regulation 635-40, paragraph 4-19 (4a), provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated for physical disability without entitlement to benefits. 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 3 February 1967, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 3 February 1970. The application is dated 28 May 1995 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 CONCUR WITH DETERMINATION Karl F. Schneider Acting Director