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ARMY | BCMR | CY2001 | 2001058408C070421
Original file (2001058408C070421.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 28 AUGUST 2001
         DOCKET NUMBER: AR2001058408


         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:
Mr. John N. Slone Chairperson
Mr. Richard T. Dunbar 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, that his records be corrected to reflect that he was medically retired. He states, in effect, that “20-to-35 men landed on [his] head as [he] was sitting on the floor in a troop carrying transport vehicle” when the vehicle stopped suddenly. He notes that he was knocked unconscious and regained consciousness on his way to the infirmary. He states he was prescribed medication for “seizures and back pain” and “sent to a disciplinary training unit” until he “was unjustly discharge[d] from active duty.” He 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:

He enlisted and entered active duty on 24 November 1975 and was honorably discharged on 27 February 1976 under the provisions of Army Regulation 635-200, paragraph 5-9 for “failure to meet established physical standards.” At the time of his discharge he had 3 months and 4 days of active Federal service. Documents associated with his separation processing were not in records available to the Board.

A 13 July 1982 application for VA benefits indicates the applicant was treated for a seizure disorder at Fort Gordon, Georgia in February 1976.

Army Regulation 635-200 provides for the administrative separation of soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment. Medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 6 months of the soldier's initial entrance on active duty which would have permanently or temporarily disqualified the individual from entry into the military had it been detected at that time.

In the absence of evidence to the contrary the Board presumes that the applicant’s discharge was appropriate and completed according to established laws and regulations. There is no evidence, and the applicant has not submitted any, which establishes that the medical condition which resulted in his separation did not exist prior to his entry on active duty.

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 February 1976, the date the applicant was discharged and authenticated his separation report. The time for the applicant to file a request for correction of any error or injustice expired on 27 February 1979.

The application is dated 5 June 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

__ JNS __ __ RTD __ __ DPH __ CONCUR WITH DETERMINATION
Carl W. S. Chun
Director, Army Board for Correction
         of Military Records
INDEX
CASE ID AR2001058408
SUFFIX
RECON YYYYMMDD
DATE BOARDED 20010828
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.



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