APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation. He states that he had syphilis and was treated on a ship when returning from Korea. Two of his children died at birth from this disease. During basic training he went to the hospital on two occasions because of high blood pressure and diabetes; therefore, he should receive a service connected disability.
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 are unavailable. The information contained herein was obtained from his VA records.
The applicant entered the Army on 26 May 1941, served in the European Theater of Operations during World War II, and received an honorable discharge at Camp Shelby, Mississippi on 31 August 1945.
He received an honorable discharge at Camp Leroy Johnson, Louisiana on 27 June 1949. He had a total of 7 years,
3 months, and 3 days of service. A 24 June 1949 report of medical examination indicates that the applicant had contacted gonorrhea in May 1942 while stationed at Camp Claiborne, Louisiana; he was medically qualified for separation.
The applicant received an honorable discharge at Camp Chaffee, Arkansas on 27 June 1952. He had a total of
10 years, 3 months, and 3 days of service. A 25 June 1952 report of medical examination indicates that the applicant was medically qualified for discharge with a physical profile of 1 1 1 1 1 1.
A VA rating decision indicates that the applicant received a gunshot wound to the right forehead on 4 July 1968. In 1987 the VA awarded the applicant a disability pension based upon his reaching age 65, that benefit based on his countable income. The VA was unaware that the applicant was a recipient of civil service annuity; his pension from the VA was discontinued, and the applicant was ultimately granted a waiver for the money due to that agency.
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
27 June 1952, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 27 June 1955.
The application is dated 30 August 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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