MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 DECEMBER 2002                 
	DOCKET NUMBER:   AR2002077606

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Conrad V. Meyer		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, disability retirement benefits and pay retroactive to 1966.  The applicant states, in effect, that he was medically retired in 1966 but has never been "paid retirement pay or benefits."  In support of his request he submits a copy of his 1966 Department of Defense Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also submits a copy of his 1 July 1966 Temporary Disability Retirement orders, which he states was the last order he received.

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 30 January 1964.  On 7 July 1966 the applicant was discharged from active duty and his name placed on the Temporary Disability Retired List (TDRL) with entitlement to disability retired pay based on a 100 percent disability rating.  

The applicant was periodically scheduled to have his medical condition re-evaluated and on examinations conducted in 1967 and 1968 it was determined that his medical condition had not stabilized and as such, his named remained on the TDRL.

During a December 1969 examination at Letterman General Hospital it was determined that his condition had stabilized for rating purposes and that his "tuberculous pleurisy" had resolved and that he had "been adequately treated with antituberculous drugs since January 1966" and that there had "been no x-ray change for a least five months."  

An informal Physical Evaluation Board convened on 16 March 1970 and found the applicant fit for duty.  The applicant concurred on 3 April 1970 and waived his right to a formal hearing.  

His name was removed from the TDRL effective 31 July 1970.

In 1977 the applicant submitted a request to the Board to have his separation document changed to show that he had been released from active duty vice retired by reason of physical disability.  The applicant acknowledged in that 

correspondence that he "was temporary disabled but was found fit for active duty and taken off the disability list…."  His application was closed administratively when the Board noted that "only administrative action is required to reply to his request concerning the reason for his separation."

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.  While an individual's name remains on the TDRL they are entitled to monthly disability payments.  Once their name is removed from the TDRL they are no longer entitled to monthly payments unless their medical condition is determined to be permanently disabling and rated at 30 percent or higher.  

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.  The applicant's name was removed from the TDRL in July 1970 when his medical condition stabilized and no longer rendered him unfit for military duties.  As such the Board notes that the applicant's disability benefits would have terminated in 1970.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in July 1970, the month in which the applicant was determined to be fit for military duties, his name was removed from the TDRL, and his disability benefits terminated.  The time for the applicant to file a request for correction of any error or injustice expired in July 1973.

The application is dated 29 July 2002 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

__CLA __  __TSK __  __CVM__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002077606	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021210	
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.	108.00	
2.		
3.		
4.		
5.		
6.