APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement. He states that he became very ill during basic training at Fort Leonard Wood, Missouri in 1974. He was dizzy and passed out; he had diabetes. Basic training aggravated the medical condition that he has had since 1974.
He states that when he entered the Army he was fit for duty. In 1985 he had a stroke and could not talk. In 1989 he again tried to serve his country as a plasterer and mechanic, and in 1992 the same thing happened as in 1974, dizziness, blackout, diabetes, and another stroke. He is a homeless veteran and wants the medical benefits he deserves.
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 was admitted to the Brooklyn Hospital on
3 April 1971 and he was diagnosed as having a right spontaneous pneumothorax, complete (collapsed lung). A chest tube was inserted and he was aspirated. The applicant was discharged from the hospital on 8 April 1971.
On 2 April 1974 the applicant enlisted in the Army Reserve for three years. The report of medical examination of
4 March 1974 indicates that the applicant had pes planus (flat feet), and shows that he did have a collapsed lung for which he was treated in 1971. The applicant was qualified for enlistment with a physical profile of 1 1 2 1 2 1. In the report of medical history the applicant furnished for the examination, he stated that his health was good.
The applicant was assigned to Fort Leonard Wood for basic training. A 12 September 1974 clinical record indicates that the applicant complained of dizziness and chest pain and passes out, and that he was unable to participate in physical training.
On 10 October 1974 a medical board (MEB) determined that the applicants history of spontaneous lung collapse caused the applicant pain when exercising. This condition existed prior to service (EPTS), and was not caused incident to service, nor aggravated by his active duty service. The MEB found him medically fit for duty in accordance with medical fitness standards, however, recommended that he be separated under the provisions of Army Regulation 635-200, paragraph 5-9 (failure to meet procurement medical fitness standards).
The applicant did not desire to continue on active duty, and the findings and recommendations of the MEB were approved on 25 October 1974. The applicant concurred.
The applicant was discharged on 7 November 1974. He had
2 months and 9 days of active service.
On 8 December 1975 the VA denied the applicants request for service connected disability because of respiratory condition, stating that that condition existed prior to his service and was not aggravated by his service.
A 7 March 1989 letter from the VA to the applicant stated that the VA had reviewed his disability compensation claim and that records did not show that he received treatment for diabetes, stroke, hypertension, or headaches during his service nor were they recorded in his report of examination upon his discharge. Service connection for blackout and dizziness as part of a respiratory condition was previously denied.
On 6 February 1995 the VA denied the applicants request for a nonservice connected disability pension.
Army Regulation 635-200, then in effect, provides for the separation of enlisted personnel. Paragraph 5-9 of that regulation states, in effect, that commanders are authorized to discharge individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment. A medical board must find that the individual has a medical condition which would have permanently disqualified him for entry in the military service had it been detected at that time, and that that condition does not disqualify him from retention in the military service under the provisions of chapter 3, Army Regulation 40-501. A request for discharge will be submitted by the individual to his unit commander within 4 months from date of initial entry on active duty or initial entry on active duty for training.
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
7 November 1974, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 November 1977.
The application is dated 20 January 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
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