MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           09 APRIL 2002
	DOCKET NUMBER:   AR2001064318

	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	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Donald P. Hupman, Jr.		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, service connected disability retirement.  The applicant states that he should have received a disability retirement instead of being medically discharged.  The applicant submits no evidence in support of his 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:

The applicant enlisted in the District of Columbia Army National Guard on 
11 May 1978, for a period of 6 years.  The applicant was ordered to active duty for basic and advanced individual training from 7 July 1978 to 7 October 1978, and in support of Operation Desert Shield/Desert Storm from 3 January 1991 to  4 October 1991.  

The applicant’s 1993, Medical Record, Consultation Sheets, show the applicant was being treated for back pain, which he stated was caused by an injury to his back about 12 years earlier (about 1981), which reoccurs causing him severe pain.  There is no documentation in the applicant’s records to show when, where or how he sustained an injury to his back. 

On 23 June 1996, a Medical Duty Review Board found the applicant medically unfit for retention.

On 14 December 1996, the applicant was separated from the Army National Guard under the provisions of National Guard Regulation 600-200, for being medically unfit for retention.  The applicant’s NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) indicates the applicant had 18 years, 7 months and 4 days of service.  However, only 14 of those years were qualifying years for retirement purposes. 

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury, rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 635-40, chapter 8, outlines the rule for processing through  the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.  Paragraph 8-6b states in effect, that the medical treatment facility will forward the medical evaluation board to the soldier’s unit commander for disposition under applicable regulations.

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

There is no evidence in the available records nor did the applicant provide documentation that his injury occurred while performing annual training, active duty special work, or active duty for training.  In the absence of medical evidence to the contrary, it is presumed that the available service records are correct as presently constituted.  The evidence in this case does not support his contention that there was an error or injustice in his separation.  

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 14 December 1996, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 14 December 1999.

The application is dated 17 October 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

__RVO __  __RJW__  __DPH__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064318	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020409	
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.