MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 08 OCTOBER 2002
         DOCKET NUMBER: AR2002072180


         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Melvin H. Meyer		Member
Mr. James E. Anderholm		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 states that he was discharged because of injuries suffered while conducting training at his National Guard unit. He should have been retired from the service because his injuries were in line of duty. His separation from the service was because he did not meet medical standards for retention.

He had an accident, originally considered a minor incident; however, after discovering that his trauma was serious, a formal line of duty investigation was conducted. The investigating officer determined that his accident was in line of duty, not due to his misconduct or neglect. Consequently, his records were referred to a medical board, which determined that his injuries were such as to prevent his continued military service. At the time of his discharge he was not informed of benefits available to him. He applied for social security benefits. He was awarded a permanent disability pension, which he is still receiving. In 1990 he was informed that his case was mishandled and that he was not receiving the benefits he was entitled to. He discovered he was denied such rights inasmuch as his accident resulting in his separation occurred while he was in an active status. He should have received all the benefits of a retired officer.

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:

The applicant was a National Guard officer, who enlisted in the Army National Guard on 24 November 1963, and who was appointed a second lieutenant on 19 October 1966. He was promoted to captain in October 1970.

A 9 December 1973 DA Form 2173 (Statement of Medical Examination and Duty Status) shows that while training with his Puerto Rico National Guard unit, he stumbled and rolled down a stairway, injuring his head and right elbow. He was treated at the dispensary and released. The statement was signed by a medical officer. The applicant, as the unit commander, completed and signed the statement, indicating that a formal line of duty investigation was not required and that his injury was incurred in line of duty.

An 11 December 1973 endorsement shows that the applicant’s battalion commander approved the statement.

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In a 25 February 1974 statement, a psychiatrist at the San Carlos Rehabilitation Center certified that the applicant was receiving treatment because of severe osteoarthritis of the cervical region with secondary myosistis of the cervical paravertebral and both trapezius muscles. He stated that the applicant had a severe limitation of his neck movements and that he complained of frequent pain in the cervical region with loss of strength in the right upper extremities with numbness and paresthesia. He opined that the applicant was totally disabled for useful and efficient service.

On 17 April 1974 the applicant’s battalion commander requested that the applicant be separated from the service because of physical disability. He provided a copy of the above medical certification concerning the applicant’s condition.

The applicant was discharged from the Army National Guard effective on 13 April 1974 and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.

In a 27 March 1975 letter to the VA the applicant’s battalion commander requested that necessary medical services be furnished the applicant because of [his injuries sustained in] the accident as shown by the 9 December 1993 statement and the administrative approval of that statement.

On 27 April 1975 the 192^nd Support Battalion, Puerto Rico Army National Guard, appointed an officer to investigate the line of duty status regarding the injury the applicant sustained on 9 December 1973.

A 1 May 1975 report of investigation shows basically the same information as the 9 December 1973 statement, except that it indicates that the applicant suffered trauma to his neck and head. The report was supported by a statement from the applicant’s first sergeant who witnessed the accident, and who stated that the applicant had a bruise on his right elbow and a bump on his head, and that he was taken to the dispensary and treated. The investigating officer determined that his injury was in line of duty. The appointing authority approved the findings. The report was not reviewed.

Army Regulation 635-40, chapter 8, provides guidance for Reserve component soldiers who are eligible for physical disability processing, and states in pertinent part that when a commander believes that a soldier is unable to perform his duties because of physical disability resulting from an injury determined to be the

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proximate result of performing active duty or inactive duty training, he will refer the soldier for medical evaluation. If the results of the examination indicate that the soldier is not qualified to perform his military duties, he will be referred to a medical board for evaluation. If the medical board finds that the soldier is not qualified for further military service, the commander of the medical treatment facility, upon approval of the medical board proceedings, will refer the case to a physical evaluation board (PEB). If the PEB finds the soldier unfit as a result of an injury, the PEB must determine whether the soldier is eligible for physical disability retirement or severance pay. The PEB must also determine whether the injury was the proximate result of performance on active duty or inactive duty training.

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.

The applicant has not provided sufficient evidence to show that he was medically unfit for military service because of the injury that he sustained in December 1973. There is no report of a medical evaluation, other than the 25 February 1974 statement, and there is no report of medical proceedings, and consequently, a physical evaluation board was not conducted. The Board notes that the line of duty investigation was not conducted until after the applicant’s discharge. Because of the passage of time, and the inadequate evidence available, it is impossible to make a determination in this case. Nonetheless, the applicant has not provided evidence to warrant a correction to his record to show that he should be retired from the service because of a physical disability.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 April 1974, the date of his discharge from the Army National Guard. The time for the applicant to file a request for correction of any error or injustice expired on 13 April 1977.

The application is dated 8 March 2002 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

__JLP __ __MMH__ __JEA __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002072180
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021008
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.	108.00
2.
3.
4.
5.
6.