RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         04 JANUARY 2005
      DOCKET NUMBER:  AR20040000282


      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:

|     |Ms. Karen Heinz                   |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. James Gunlicks                |     |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 in order to
receive ”some privileges” for his many years of military service.

2.  The applicant states when he was discharged from the National Guard he
should have been given some privileges for the many years that he served,
including service during Desert Storm.  He states he earned that right.  He
states that he believes that the National Guard just forgot about his time
because of the war and just “wanted to put [him] out due to [his]
condition.”

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 1 October 1991.  The application submitted in this case
is dated
22 March 2004.

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 enlisted in
the Army National Guard in September 1981.  His service medical records
indicate that he was treated for cold symptoms in 1982, 1984, 1986, and
1987, for right knee pain after stepping in a pothole during physical
training in June 1983, for a twisted ankle in July 1984, and for bilateral
calf edema and ankle pain in August 1987.  In 1988 he underwent a periodic
physical examination which found him medically qualified for continued
service.  In July 1989 he was treated for a pulled muscle.

4.  In December 1990 the applicant reported for medical evaluation as part
of his unit’s mobilization and deployment to Germany.  He was seen at
several clinics and admitted for a kidney biopsy after it was discovered
that he had “increased blood pressure.”  Further investigation revealed
that his elevated blood pressure was discovered at a civilian clinic in
Oakland, California, in January 1990 at which time it was also discovered
that he had an elevated cholesterol level.  A diagnosis of hypertension was
made.  Following the January 1990 clinic visit, the applicant was placed on
medication, which he continued to take until he ran out “in approximately
October of 1990.”

5.  By the time the applicant was released from the hospital on
20 December 1990 it was determined that he suffered from “both uncontrolled
hypertension and progressive renal failure.”  He was determined to no
longer meet medical retention standards.

6.  An informal state medical board concluded in August 1991 that the
applicant’s medical condition rendered him unfit for retention and that his
condition was not incurred in the line of duty and was not service
connected.

7.  On 1 October 1991 the applicant was honorably discharged from the
California Army National Guard as a result of not meeting medical retention
standards.  At the time of his discharge he had approximately 10 years of
creditable military service.

8.  Title 10, United States Code provides for disability processing of
Reserve Component soldiers who incur or aggravate an injury or disease in
the line of duty while performing inactive or active duty for training.

9.  Army Regulation 635-40 states that in order for soldiers of the Reserve
Components to be compensated for disabilities incurred while performing
duty for 30 days or less, there must be a determination by a Physical
Evaluation Board that the unfitting condition was the proximate result of
performing duty.

10.  Army Regulation 635-40 states, in effect, that Reserve Component
soldiers will be separated from the Reserve when they no longer meet
medical retention standards.  Such separation will be without benefits if
the unfitting condition was not incurred or aggravated as the proximate
result of performing annual training, active duty special work, active duty
for training, or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, nor has the applicant provided any, which
confirms that his medical condition was the proximate result of performing
his military service. As such there is no basis to correct his records to
reflect medical retirement.

2.  The fact that the applicant may have served in the military for
approximately 10 years and was ordered to active duty during the Gulf War
period is also not sufficient justification to warrant correcting his
separation to provide for military 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 October 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 September 1994.  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

___KH __  ___RD __  ___JG  __  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.




                                  ______Karen Heinz__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000282                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050104                                |
|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.                      |                                        |


-----------------------
[pic]