| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Luther L. Santiful | Chairperson | |
| Mr. Melvin H. Meyer | Member | |
| Mr. John T. Meixell | Member |
APPLICANT REQUESTS: In effect, that he be medically retired or discharged. The applicant states, in effect, that he was told that he was being medically discharged from the Army as a result of being hurt “in the line of duty.” He notes that a DD Form 689 (Sick Slip, Individual) “plainly states injured in the line of duty” but he does not submit that form, nor any other 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 in the U.S. Army Reserve on 28 February 1984 and was ordered to active duty for the purpose of undergoing basic training on 6 April 1984.
On 18 April 1984 a physician determined the applicant’s history of a left inguinal hernia was medically disqualifying. The applicant indicated that he had noticed increased swelling and pain upon entry on active duty. The evaluating physician recommended the applicant be separated from the military. A medical evaluation board concurred with the findings and recommendation of the evaluating physician. As a result of the findings and recommendation the applicant requested separation from the military.
On 23 April 1984, just prior to finalization of the applicant’s medical proceedings, he struck his head on a metal object and sustained a cut on the top of his head. His wound was cleaned and he returned to duty. The head injury had no impact on the applicant’s discharge proceedings.
On 8 May 1984 the findings and recommendation of the medical board and the applicant’s request were approved and on 10 May 1984 he was discharged for failing to meet procurement medical fitness standards.
Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnoses or should have been diagnosed. Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.
The applicant’s discharge for failing to meet procurement medical fitness standards was appropriate and the applicant has not provided any evidence which support his contention that he should have been medically retired or discharged as a result of a service incurred injury or medical condition.
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 10 May 1984, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 10 May 1987.
The application is dated 13 April 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
__LLS___ __MHM _ __JTM __ CONCUR WITH DETERMINATION
| CASE ID | AR2001059236 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20010906 |
| 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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