RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 March 2004
      DOCKET NUMBER:   AR2003091583


      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             |
|     |Mr. Robert J. McGowan             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Mae M. Bullock                |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 be given a medical
disability retirement.

2.  The applicant states that he was seriously wounded in Vietnam and a
social worker recently told him that he should have been given a medical
discharge.

3.  The applicant provides:  a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge); a copy of DA Form 3647
(Clinical Record Cover Sheet), dated 11 April 1970, showing temporary
disability retirement; a copy of DA Form 8-275-2 (Clinical Record Cover
Sheet), dated 12 January 1971, showing referral to a Medical Evaluation
Board (MEB); a copy of a Medical Board Proceedings, dated 20 October 1970;
a copy of SF 502 (Clinical Record Narrative Summary), dated 30 October
1970, a copy of SF 88 (Report of Medical Examination), dated 20 October
1970, a copy of a 3-page SF 516 (Clinical Record Operation Report), dated 6
April 1970; and a copy of DA Form 8-275-2 (Clinical Record Cover Sheet),
dated 9 April 1970.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 31 August 1972.  The application submitted in this case is
dated 21 May 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.  The applicant was inducted into the Army of the United States for 2
years on 11 August 1969.  Upon completion of all required military
training, he was awarded military occupational specialty (MOS) 11B
(Infantryman) and sent to Vietnam.

4.  The applicant arrived in Vietnam on or about 16 January 1970 and was
assigned to Company C, 4th Battalion, 12th Infantry, 199th Infantry
Brigade.

5.  On 31 March 1970, the applicant was wounded by a gunshot to his right
thigh. The gunshot wound fractured his right femur and resulted in a 2-inch
shortening of his right leg.  He was medically evacuated to Japan, then to
the United States.

6.  At Ireland Army Hospital, Fort Knox, Kentucky, the applicant was
treated and referred to an MEB.  On 20 October 1970, the MEB found him to
be 80 percent disabled and referred him to a Physical Evaluation Board
(PEB).

7.  On 29 December 1970, a PEB found the applicant 80 percent disabled and
recommended he be placed on the temporary disability retirement list
(TDRL).  He was released from active duty on 12 January 1971 and placed on
the TDRL on 13 January 1971.  A re-evaluation was ordered for November
1971.

8.  The applicant's DD Form 214 shows that he served 1 year, 5 months, and
1 day of creditable active service.  He was separated as a Specialist Four
(SP4/E-4) and his awards included the Purple Heart, National Defense
Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Combat
Infantryman Badge.

9.  The applicant underwent a physical reevaluation on 17 November 1971 at
Ireland Army Hospital.  The examination found “. . . healed wounds in the
distal third of the right thigh.  The right hip has a normal range of
motion, the right knee has a range of motion from 0 to 135 degrees.
Quadriceps strength is excellent.  There is no instability in the knee.”
The examining physician recommended that the applicant be removed from the
TDRL and separated from the Army.

10.  On 17 November 1971, the applicant underwent an MEB.  The MEB
recommended that he be referred to a PEB for evaluation.

11.  On 8 June 1972, a PEB convened to hear the applicant’s case.  The
board found the applicant to be medically fit for military service.  The
applicant was notified of the board’s recommendation and offered the
opportunity to respond.  Although there is a receipt showing that the
applicant was notified by certified mail, there is no evidence he
responded.  On 31 August 1972, the applicant was removed from the TDRL and
assigned to the US Army Reserve (USAR) Control Group.

12.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his or her office, rank, grade or rating because of
disability incurred while entitled to basic pay.

13.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of active
service or a disability rated at least 30 percent.

14.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years active service
and a disability rated at less than 30 percent.

15.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention,
Retirement, or Separation) establishes the Army Physical Disability
Evaluation System according to the provisions of chapter 61, title 10,
United States Code and Department of Defense Directive 1332.18.  It sets
forth policies, responsibilities, and procedures that apply in determining
whether a Soldier is unfit because of physical disability to reasonably
perform the duties of his or her office, grade, rank, or rating.  If a
Soldier is found unfit because of physical disability, this regulation
provides for disposition of the Soldier according to applicable laws and
regulations.  It provides, in pertinent part, that an individual may be
placed in a TDRL status for a maximum period of 5 years when it is
determined that the individual is qualified for disability retirement under
Title 10, United States Code, section 1201, but for the fact that his or
her disability is not stable and the individual may recover and be fit for
duty, or the degree of severity may increase or decrease so as to warrant a
change in the disability rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was seriously wounded while serving in Vietnam.  He was
medically evacuated from Vietnam and, at Ireland Army Hospital, he
underwent physical evaluation processing which found him to be unfit for
duty with an 80 percent disability.  He was ultimately placed on the TDRL
in January 1971.

2.  In accordance with applicable regulations, the applicant was
reevaluated in November 1971 and his unfitting condition showed remarkable
improvement.  He was referred to an MEB which found him fit for duty.  A
subsequent PEB also found him fit for duty and recommended his removal from
the TDRL.  The applicant acknowledged notification of the board’s decision,
but did not respond to a request to make an election regarding return to
duty.  He was removed from the TDRL on 31 August 1972 and assigned to the
USAR.

3.  The applicant’s removal from the TDRL was accomplished in accordance
with applicable regulations then in effect.  He was found fit for duty and
offered the opportunity to return to active duty status.  He never
responded and he was properly assigned to the USAR to complete his reserve
obligation.

4.  Soldiers who are found to be unfit and qualified for disability
retirement, but whose unfitting condition is unstable, may be placed on the
TDRL for up to 5 years and subjected to periodic monitoring of the
unfitting condition.  Soldiers on the TDRL may receive one of the following
dispositions depending on physical condition:  removal from the TDRL and
placement on the permanent disability retired list; removal from the TDRL
and return to duty; removal from the TDRL and separation (or assignment to
the USAR).

5.  The applicant has not shown that he is entitled to a medical discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 August 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 August 1975.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __mmb___  __phm___  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.



                 John N. Slone
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003091583                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040311                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |