MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 17 SEPTEMBER 2002
         DOCKET NUMBER: AR2002072764


         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. Elzey J. Arledge, Jr.		Chairperson
Mr. Thomas B. Redfern III		Member
Ms. Karen A. Heinz		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 or separation.

The applicant states that he was drafted on 14 September 1961 with an injured back, served in the Army for seven months, and re-injured his back twice. On 2 April 1962 an examination revealed that he had mild muscle spasms which were bad enough to cause his discharge. He should have received a medical discharge. The clinical record which stated, “without service aggravation,” should have stated, “with service aggravation.” He states as he gets older he may need all the benefits to which he is entitled to include back pay for his incorrect discharge and medical treatment from the VA at no charge to himself.

He submits with his application a copy of his DD Form 214, a copy of a 2 April 1962 report of medical examination, a copy of a 6 April 1962 clinical abstract, a copy of his 13 April 1962 request for separation, a copy of a 16 April 1962 medical board proceedings, and a copy of an 18 April 1962 letter and endorsement forwarding those proceedings.

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 inducted into the Army on 14 September 1961. A report of medical examination shows that he was medically qualified for induction with a physical profile serial of 1 1 1 1 1 1. In the report of medical history he furnished for the examination the applicant stated that he was in good health, but indicated that he had been treated for back trouble.

The applicant completed training and in December 1961 was assigned to an infantry battle group in Hawaii.

A 6 April 1962 clinical record shows that the applicant was admitted to the orthopedic service at Tripler General Hospital on 23 March 1962 because of severe low back pain, which occurred while walking upstairs and suddenly shifting his weight. That record shows that he had recently been discharged from the orthopedic service after being treated for a similar complaint which occurred

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after lifting a box of ammunition. The record shows that he was hospitalized from 6 March to 19 March 1962, and discharged with a diagnosis of acute lumbosacral strain. X-rays revealed bilateral spondylolysis of the L5 vertebra. The record shows that the applicant had a history of low back pain going back to August 1960 when he was a civilian, and that at the time the pain was quite severe, resulting in restricted activities for six to seven weeks. The record indicates that the applicant had rather constant low back pain of varying severity since then, but there had been no further major difficulty until March 1962 when he was initially admitted to Tripler. The clinical record indicates that the applicant was unacceptable for active military service on the basis of a symptomatic spondylolysis with recurrent lumbosacral strain. It indicates that the condition existed prior to his service and was not permanently aggravated by his service. The examining physician recommended that he be separated from the service for symptomatic spondylolysis with recurrent lumbosacral strain, EPTE (existed prior to enlistment) without service aggravation.

On 13 April 1962 the applicant requested discharge for physical disability under the provisions of Army Regulation 635-40B, Section XII. He stated that he had been notified that, based upon 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 14 September 1961 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 medial board corroborate the preliminary findings concerning his unfitness, he might be discharged for physical disability without further hearing. He started that he understood that such separation would be without disability retirement or disability severance pay; however, it did not preclude his applying for benefits administered by the VA.

Medical board proceedings conducted on 16 April 1962 show that the applicant was diagnosed with spondylolysis, symptomatic, L5 vertebra, without spondylolisthesis; and strain, chronic, recurrent, lumbosacral musculature; both conditions which existed prior to his service, neither of which were service aggravated. His physical profile serial was 1 1 4 1 1 1. The board recommended that the applicant be separated from the Army under the provisions of Army Regulation 635-40B. The proceedings indicate that the applicant did not desire to continue on active duty. The findings and recommendations of the board were approved on 17 April 1962 and the applicant concurred with those findings and recommendations on that same date.

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On 18 April 1962 the medical proceedings were forwarded to the separation authority, who approved the board recommendation on 24 April 1962.

The applicant was discharged under the provisions of Army Regulation 635-40A on 30 April 1962 with an honorable characterization of service. He had 7 months and 17 days of service.

Army Regulation 635-40B, then in effect, prescribes administrative procedures for the implementation of Army Regulation 635-40A in processing members for physical disability evaluation, retention, separation, or retirement. Section XII, provides for the evaluation and separation of members for physical disability which existed prior to entry on active service and not aggravated by the service. Members so separated will be given an Honorable or a General Discharge Certificate.

There is no evidence, nor has the applicant provided any, to indicate that he is entitled to physical disability retirement or separation. On the contrary, the evidence is ample that his condition existed prior to his entry on active duty and was not aggravated by his military service. Consequently, there is no basis to correct his record to show physical disability retirement or separation.

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 30 April 1962, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 30 April 1965.

The application is dated 3 April 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

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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

__EJA___ __TBR__ __KAH __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002072764
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020917
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.