RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         07 OCTOBER 2004
      DOCKET NUMBER:  AR2004102179


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. Patrick McGann                |     |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.  In effect, the applicant requests physical disability retirement.

2.  The applicant states that he has hepatitis and was diagnosed with this
condition within one year of his separation from the Army.

3.  The applicant provides a copy of a December 1989 medical record from
the Medicine of Columbus in Columbus, Georgia, that purports to show that
he was diagnosed with hepatitis [within 30 days of his retirement from the
Army], a copy of a page from a 16 June 1992 Department of Veterans Affairs
(VA) medical report regarding an examination for an increase [in benefits],
and a copy of an   18 January 2002 statement that he made to the Department
of Veterans Affairs (VA) disagreeing with the decision, apparently that his
condition was not service connected.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 November 1989.  The application submitted in this case
is dated 29 December 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 entered on active duty in 1969 and remained on continuous
active duty until his retirement in 1989.  He was an infantryman, served in
Vietnam from November 1969 until the end of October 1970 with an infantry
company of the 9th Infantry Division, and was awarded the Combat
Infantryman Badge.  He served in Germany, Korea, and various locations in
the United States, and attained the rank of master sergeant.

4.  In July 1988 he received a letter of reprimand for driving while
intoxicated.  In September 1988 he received nonjudicial punishment under
Article 15, Uniform Code of Military Justice for missing movement.  On 3
April 1989 he was barred from reenlisting.

5.  On 25 May 1989 the applicant requested that he be retired on 1 December
of that year.  He retired from the Army on 30 November 1989 with over 20
years of service.

6.  There is no medical evidence to show that he contracted hepatitis while
in Vietnam or while he was on active duty.

7.  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 office, rank, grade or rating because of disability
incurred while entitled to basic pay.

8.  Army Regulation 40-501, then in effect, provides that for an individual
to be found unfit by reason of physical disability, he must be unable to
perform the duties of his office, grade, rank or rating.

9.  Army Regulation 635-40, paragraph 2-2b, then in effect, provides that
when a member is being separated by reason other than physical disability,
his continued performance of duty creates a presumption of fitness which
can be overcome only by clear and convincing evidence that he was unable to
perform his duties or that acute grave illness or injury or other
deterioration of physical condition, occurring immediately prior to or
coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that he be retired from the Army.  His request
was granted and he was retired.  There is no medical evidence and the
applicant has not submitted any, to show that he was medically unfit at the
time of his retirement.  Furthermore, his continued performance of duty
raised a presumption of fitness which he has not overcome by evidence of
any unfitting, acute, grave illness or injury concomitant with his
separation.

2.  The applicant did not have any medically unfitting disability which
required physical disability processing.  Therefore, there is no basis for
physical disability retirement.

3.   Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on (enter date).  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

__WM___  __PS ___  __PM ___  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.




                                  _____Walter Morrison_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004102179                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041007                                |
|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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