RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 January 2005
      DOCKET NUMBER:  AR20040000662


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 that his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) be corrected to show he was
discharged on 16 October 1967 with 91 days of creditable active service.

2.  The applicant states that he needs the correction to qualify for
Department of Veterans Affairs (VA) benefits.  He broke his knee in October
1966.  He was going to be drafted, so he enlisted instead so he could
choose his military occupational specialty.  The physicians at his
induction physical indicated he passed his physical despite not being
completely healed from his knee injury.  The first week of orientation went
well; however, when he transitioned to basic training his knee began to
swell.  He was later told he should not have been passed on the physical.
He was very disappointed at not being able to fulfill his desire to serve
his country.

3.  The applicant provides his DD Form 214 and a letter, dated 19 April
2004, from his Representative in Congress.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 September 1967.  The application submitted in this case is
dated 21 April 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.  The applicant completed a Standard Form 89 (Report of Medical History)
on  6 July 1967.  On that form, he indicated that he had a cracked knee
cartilage which had since healed.  On that date, he was found to be
qualified for enlistment.

4.  A letter, dated 8 August 1967, from the applicant's civilian doctor
indicated he had been treated for a fractured right patella incurred around
December 1966.  He had been treated by application of a skin-tight cast for
6 weeks, his knee continued to swell periodically, and he was given
physiotherapy.

5.  On 11 August 1967, the applicant signed a DA From 1049 (Personnel
Action) applying for separation by reason of erroneous enlistment or
induction.  He stated that he had been advised that a medical examination
revealed he had a medical condition which would have permanently
disqualified him for entry in the military service had it been detected at
the time and did not disqualify him from retention in the military under
the provisions of chapter 3, Army Regulation       40-501.  He was advised
that if medical board findings confirmed the findings of the examining
physician that he could apply for separation by reason of having been
erroneously inducted or enlisted or elect to complete the period of service
for which he was originally inducted or enlisted.  He elected to make
application for separation.

6.  On 30 August 1967, a Medical Evaluation Board found the applicant to be
medically unfit by reason of arthritis of the knee due to an old fracture
of the patella, existed prior to service (EPTS).  The condition was found
to be service aggravated.  The applicant signed the DA Form 8-118 (Medical
Board Proceedings) on 30 August 1967 indicating he did not agree with the
board's action and desired to appeal; however, an appeal is not available.

7.  On 25 September 1967, the applicant was honorably discharged because of
not meeting medical fitness standards at time of enlistment.  He had
completed   2 months and 8 days of creditable active service.

8.  In 1974, the applicant requested enlistment.  He had provided a
statement from the LaGrange, NY Town Justice who noted that the applicant
was a licensed mason and had had four years of apprentice school training
for that difficult job.  A medical waiver was approved but there is no
evidence to show he enlisted.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 5-9a, in effect at the time,
provided for the discharge of individuals who were not medically qualified
under procurement medical fitness standards when accepted for initial
enlistment when a medical board, regardless of the date completed,
established that a medical condition was identified by appropriate military
medical authority within 4 months of the member's initial entrance on
active duty which (1) would have permanently disqualified him for entry
into the service had it been detected at that time; and (2) did not
disqualify him for retention in the service under the provisions of chapter
3, Army Regulation 40-501.

10.  Army Regulation 635-200, paragraph 5-9b provided, as an exception,
that an individual who was found to meet the requirements of paragraph 5-9a
but who elected to complete the period of service for which inducted or
enlisted would not be discharged.  Such member would be required to sign a
statement electing to complete his period of service notwithstanding his
eligibility for discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not meet procurement medical fitness standards due to
having broken his knee less than one year prior to his enlistment.  Entry
physical examinations are not comprehensive and it would not have been
unusual for his symptoms (swelling of the knee) to appear only after he
began his strenuous basic combat training.

2.  The applicant's statement that he was very disappointed at not being
able to fulfill his desire to serve his country is noted.  Since it appears
he met medical retention (as opposed to procurement) standards, he was
given the opportunity to complete his enlistment but he elected to
separate.  That was his personal decision at the time.  Unfortunately, more
than 35 years later that decision has led to his inability to receive VA
benefits; however, there is no error or injustice in the applicant's
military records.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 September 1967; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    24 September 1970.  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

__fne___  __rtd___  __ym____  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                 |AR20040000662                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050106                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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