APPLICANT REQUESTS: That his records be corrected to show that he injured his lower back, left leg and right arm while he was jumping during basic combat training. He states that when he was treated for those injuries he was afraid to tell the physician the truth about how he was injured, so he fabricated the story that he had fallen off a horse 2 months prior to enlisting.
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 were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from his military medical records.
The applicant enlisted on or about 31 July 1954. While he was on active duty he was examined on several occasions for complaint of asthma, which was diagnosed as spastic bronchitis. On 11 August 1954 he reported to a military physician that he had Fell off horse two months ago and has had pain in his back since then. During that examination he demonstrated tenderness over his left flank and hip, but was not diagnosed as having serious injuries. The physician treating him entered on his health record that the applicants back pain was not incurred in line of duty, that the condition had existed prior to his enlistment. Subsequently, on 22 July 1955 he was treated for a complaint of knee pain; on 18 September 1956 for knee pain due to cold weather; and on 3 November 1956 for sporadic pain in his right forearm with no history of injury.
The applicant was given separation physical examinations on 9 April and 23 July 1957. Both examinations found him to be in perfect physical health.
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 11 August 1954, the date the medical record of his back injury was recorded. The time for the applicant to file a request for correction of any error or injustice expired on 11 August 1957.
The application is dated 14 March 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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