RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            01 APRIL 2004
      DOCKET NUMBER:   AR2003095160


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Walter T. Morrison            |     |Member               |
|     |Mr. John T. Meixell               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he receive his disability
benefits based on a medical discharge.  He also asks that the “tag” on his
military records identifying him as a deserter be removed.

2.  The applicant states, in effect, that he received a medical discharge
with a 30 percent rating but has never received any of the benefits “given
by [the] medical board.”  He also states that his “tag” as a deserter
should be cleared because it could cause problems.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on 1
April 1977.  The application submitted in this case is dated 23 July 2003.


2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 31 May 1973 for a period of 4 years.  His enlistment
physical examination was not available to the Board.

4.  Following completion of training, the applicant was apparently
initially assigned to Fort Sill, Oklahoma with a reporting date of 4 August
1973.  Although documents associated with his diversion to Fort Carson,
Colorado were not in records available to the Board, he did arrive at Fort
Carson in August 1973.

5.  Officials at Fort Sill were apparently unaware that the applicant had
been diverted to Fort Carson and by June 1974 initiated a retroactive
action placing the applicant in an AWOL (absent without leave) status
effective 4 August 1973 and subsequently in a deserter status effective on
2 September 1973.  By July 1974 the applicant’s status at Fort Carson was
confirmed and officials at the United States Army Enlisted Records Center
nullified his deserter status.  The applicant’s Official Military Personnel
Files contain the documents nullifying the applicant’s classification as a
deserter.

6.  In July 1975 the applicant was reassigned to Germany.  By August 1975
he had been issued a profile limiting him to light duty because of asthma.

7.  In November 1976 a Medical Evaluation Board (MEB) noted that the
applicant had a life long history of asthma and allergic rhinitis.  The MEB
concluded that the applicant’s asthma existed prior to his entry on active
duty (EPTS) and that it was not aggravated by his military service, but had
become worse through “normal progression.”  The MEB recommended the
applicant be referred to a Physical Evaluation Board (PEB).  The applicant
concurred and indicated that he did not wish to remain on active duty.

8.  On 22 December 1976 a PEB concluded that the applicant’s asthma
precluded him from reasonable fulfillment of “the purpose of his employment
in the Army” and that his “condition is the natural progression of a pre-
existing impairment which existed prior to service.”  The PEB recommended
that the applicant be discharged “without entitlement to disability
benefits.”  The applicant concurred with the findings and recommendation of
the PEB and waived his right to a formal hearing.

9.  On 1 April 1977 the applicant was honorably discharged.

10.  Army Regulation 635-40 states that soldiers who are unfit by reason of
a physical disability neither incurred nor aggravated during his period of
service will be separated for physical disability without entitlement to
benefits.

11.  Army Regulation 635-40 also notes that when an EPTS condition becomes
symptomatic under the stress of active duty the condition may be unfitting
but it has not been aggravated by active duty unless it has been
permanently worsened over and above natural progression.  One of the key
factors in determining if a condition is aggravated by one’s military
service is not if the condition resurfaces while in the military but if it
is permanently aggravated by the individual’s military service.  In order
for the applicant’s asthma to be considered service aggravated it would
have had to be permanently worsened by his military service.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, his records do not contain a
“tag” identifying him as a deserter.  Officials at the United States Army
Enlisted Records Center nullified the erroneous deserter action in July
1974.  His being reported as a deserter and the subsequent nullification of
that action are well documented in his file and as such no error or
injustice is created by the retention of those documents in his file.

2.  The applicant’s discharge resulted from a pre-existing medical
condition.  As such, he would not have been entitled to any disability
benefits from the Army.  The evidence available to the Board confirms that
the applicant was a participant in his separation process and that he
concurred with the findings and recommendation of the PEB that he should be
discharged without entitlement to benefits.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 April 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
31 March 1980.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __WTM _  __JTM  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Fred N. Eichorn______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003095160                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040401                                |
|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.                      |                                        |