RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         14 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004101831


      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. Mark Manning                  |     |Chairperson          |
|     |Ms. Karen Heinz                   |     |Member               |
|     |Mr. Robert Duecaster              |     |Member               |

      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, disability retirement or separation.

2.  The applicant states he should have received “disability for [an]
injury received while in the service.”  He states that he sustained an
injury to “the ligament in [his] leg and arm” which should have “given
[him] disability.”

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 March 1962.  The application submitted in this case is
dated
6 November 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 30 December 1958.  He successfully completed training and
was assigned to a signal unit in Germany.

4.  His service medical records indicate that he developed a paralysis in
his right wrist and left leg in late 1960 and received temporary physical
profiles for both conditions.  By March 1961 the paralysis had resolved.

5.  In January 1962 the applicant underwent a separation physical
examination.  He noted that he had paralysis in his arm and leg and that
the paralysis in his leg “came back once” but otherwise he was in good
health.  The examining physician noted that the applicant wore a brace on
his arm and leg because of temporary paralysis between October 1960 and
February 1961 but that medical examinations did not show “serious neurology
disease, just temporary disorder.”  At the time of his separation physical
he exhibited no trouble.  He received a physical profile of 1-1-1-1-1-1
indicating that he was medically qualified for separation.

6.  On 8 March 1962 the applicant was released from active duty with an
honorable characterization of service in pay grade E-5.  He signed a
statement indicating there had been no change in his medical condition
since his January 1962 physical examination.  His separation document
indicates he received a Re-entry (RE) Code of 1, indicating he was fully
qualified for reenlistment.

7.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to Soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  When a Solider is being
processed for separation for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or
grade until the Soldier is scheduled for separation, is an indication that
the applicant is fit.

8.  Title 38, United States Code, sections 1110 and 1131, permits the
Department of Veterans Affairs to award compensation for a medical
condition which was incurred in or aggravated by active military service.
An individual's medical condition, although not considered medically
unfitting for military service at the time of processing for separation,
discharge or retirement, may be sufficient to qualify the individual for VA
benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that because he had a medical condition
while in the military and a physical profile he should have been medically
retired or separated is without foundation.  The evidence of record
indicates that in spite of the profiles and medical condition, the
applicant continued to perform his military duties until he was released
from active duty.  The fact that he received a RE Code of 1 at the time of
his separation, indicating that he was fully qualified for reenlistment,
supports this conclusion.

2.  There is no evidence, and the applicant has not provided any, which
confirms that he was physically unfit to perform his duties at the time of
his separation.

3.  The evidence of record indicates he did not have any medically
unfitting disability which required physical disability processing.
Therefore, there is no basis for physical disability retirement.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 March 1962; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
7 March 1965.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___KH __  ___RD __  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.




                                  ____ _Mark Manning_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101831                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040914                                |
|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.                      |                                        |


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