MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 02 APRIL 2002
         DOCKET NUMBER: AR2001064717


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Curtis L. Greenway		Member
Ms. Regan K. Smith		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)

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APPLICANT REQUESTS: In effect, physical disability retirement.

The applicant requests that the reason and authority for his discharge be corrected to show that he was not medically disqualified because of a condition that existed prior to his entry on active duty. He states that his report of medical examination dated 19 July 1954, five months prior to his induction, showed that his only prior existing medical conditions were left varicocele (5120), pes planus (7460), and mild anxiety (3100). However, he was told that he was being discharged for having a heart condition resulting from rheumatic fever, and that he was treated at a St. Louis county hospital prior to his entry on active duty. His induction physical examination does not indicate this.

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:

A 19 July 1954 report of medical examination shows that the applicant was medically qualified for induction into the Army with a physical profile serial of 2 1 2 1 1 2. That report listed his conditions as Left varicocele (5120), pes planus (7460), and mild anxiety (3100).

The applicant’s DD Form 214 shows that he was inducted into the Army on 28 December 1954.

A 16 May 1955 medical report shows that the applicant was treated for pain to his neck and left shoulder. That report also shows that the applicant had rheumatic fever when he was 14 years old, and that he was hospitalized at St. Louis Hospital in Clayton, Missouri for three months.

A 26 May 1955 medical report shows that the applicant was diagnosed with a left ventricular enlargement.

On 31 May 1955 the applicant requested discharge for the convenience of the government for physical disability under the provisions of Special Regulation 600-450-10. He stated that he had been notified that, based on preliminary findings, he was considered unfit for retention in the military service because of a physical disability which was considered to have existed prior to 28 December 1954, and which appeared to be not incident to or aggravated by prior or subsequent military service. He stated that it had been fully explained to him that as a result of his application and provided that the approved findings of a medical board corroborate the preliminary findings concerning his unfitness, he might be discharged for the convenience of the government for physical disability without further hearing. He stated that he understood that such separation would be without disability retirement or disability severance pay.

A 6 June 1955 clinical abstract shows that the applicant was first seen in the medical clinic on 16 May 1955 with complaints of migrating joint pain and shortness of breath and heart palpitations on exertion. That abstract indicated that the applicant had an attack of rheumatic fever at age 14 and was hospitalized for three months, that he had been rejected for jobs because of an heart ailment, and by the Army in 1945 for the same reason. It indicated that the applicant had been having yearly episodes of joint pains, especially during weather changes, ever since his initial attack of rheumatic fever. The report indicated that he was placed on quarters for three days in April 1955 because of wrist swelling, and that the applicant claimed that he had been having heart palpitations and shortness of breath on moderate exertion ever since his first episode of rheumatic fever. The abstract provided information concerning his past history, and the results of his physical examination and laboratory data. His condition was diagnosed as rheumatic valvulitis, inactive, with deformity of valve and mitral regurgitation, EPTS (existed prior to service).

A 7 June 1955 report of medical examination shows that the applicant was medically unfit for retention in the service because of rheumatic valvulitis (involvement of a cardiac valve by the rheumatic process; endocarditis), EPTS, with a physical profile serial of 4 1 1 1 1 1. On that same date, a board of officers recommended that he be separated from the service because of his rheumatic heart disease. The proceedings were approved on 21 June 1955.

The applicant was discharged on 24 June 1955 under the provisions of Special Regulation 600-450-10, because of a medical disqualification that existed prior to his entry on active duty.

Due to the passage of time, certain information is not available. However, the current Army Regulation 635-40 states in pertinent part that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that hey must have existed or have started before the individual entered the military service. That regulation also provides for the separation of an enlisted soldier for non-service aggravated EPTS conditions when the soldier requests waiver of a Physical Evaluation Board evaluation.

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. There is no evidence, nor has the applicant provided any, to indicate that his discharge for an EPTS medical condition was in error or unjust and as such there is no basis correct his record to show physical disability retirement.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 June 1955, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 24 June 1958.

The application is dated 29 October 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

__WTM__ __CLG__ __RKS __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001064717
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020402
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.	108.00
3.	191
4.
5.
6.