RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 April 2005
      DOCKET NUMBER:  AR20040005803


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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, that his medical condition be
determined not to have existed prior to service (EPTS) and that his
discharge be changed to a medical separation with severance or retired pay.

2.  The applicant states that, during basic training for gas mask
application, most of them were falling asleep due to the hot sun and
getting up at 5:00 a. m.  He was picked at random to hold a can of gas with
the top removed.  After about     10 minutes of changing hands due to the
pain, some of the gas started to seep out.  Someone screamed, "gas."  He
thought it was coming from the can he was holding, and then he heard a
rumble like a herd of cattle.  When he looked around they were surrounded
by gas.  When he reached for his mask, he was trampled on with his leg
caught under the bench.  He received injuries to his leg, groin area, and
neck.

3.  The applicant further states that during the next couple of days they
all laughed because so many of them had injuries.  Everyone started to heal
except him.  He went to the hospital with his throat and leg swollen.  He
was sent home with an honorable discharge.  He has been in pain for the
past 42 years.  Now he is retired with a limited income and no health
insurance.

4.  The applicant provides a radiology report dated 28 July 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 August 1962.  The application submitted in this case is
dated 1 August 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 was inducted into the Army on 10 July 1962.

4.  On 3 August 1962, the applicant was hospitalized.  His Medical
Evaluation Board (MEB) Narrative Summary indicates that he stated that two
years previously he was kicked in the right thigh while playing football.
Since that time he had had increasing pain and difficulty in the right
thigh region, anterior aspect, and a mass had been noted in that region.
Following his entry into the service, he had experienced increasing pain in
his right leg and he was unable to keep up with his fellow trainees.  The
Narrative Summary noted he was medically unfit for induction and enlistment
and that he was fit for retention but elected separation under the
provisions of Army Regulation 635-205, paragraph 3a(6).  He was diagnosed
with myositis ossificans (inflammation of a voluntary muscle characterized
by bony deposits or by ossification of muscles) and referred to an MEB.

5.  On 3 August 1962, the applicant signed a DA Form 1049 (Personnel
Action) requesting discharge for physical reasons which existed prior to
his induction.  He acknowledged that he had a deformity of his right thigh
that was known by him for about two years prior to his induction.  He
desired to be present at his MEB.

6.  On 16 August 1962, an MEB found the applicant to be medically unfit due
to myositis ossificans , anterior femoral muscles, EPTS and recommended he
be separated for an EPTS condition.  The applicant was present during the
proceedings.  He was informed of the approved findings and recommendation
of the MEB and signed the DA Form 8-118 (Medical Board Proceedings) on
16 August 1962.  He did not appeal the findings and recommendation.

7.  On 20 August 1962, the applicant was honorably discharged under the
provisions of Army Regulation 635-205, paragraph 3a(6)(b) for having a
disability, EPTS.

8.  Army Regulation 635-205 (Discharge and Release, Convenience of the
Government), change 4 dated 21 July 1961, paragraph 3a(6)(b) provided for
the separation of an individual who claimed that he was erroneously
enlisted or inducted because he did not meet the medical fitness standards
at the time of his enlistment or induction.  A request for discharge under
this provision would be submitted by the individual to his unit commander
not later than 4 months subsequent to enlistment or induction.

9.  Army Regulation 635-205, paragraph 3a(6)(b) further provided that
separation would be governed by the individual's actual medical fitness for
further military service under retention medical fitness standards.  The
medical evaluation must have been confirmed by a medical board.  In the
event the medical board determined that the individual did not meet the
medical fitness standards for enlistment or induction, although he met the
medical fitness standards for retention, the officer having discharge
authority would order the discharge of the individual.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant requested discharge under
the regulatory provisions that provided for the separation of an individual
who claimed that he was erroneously inducted because he did not meet the
medical fitness standards at the time of his induction.  He signed a
document on 3 August 1962 requesting discharge for physical reasons which
existed prior to his induction and acknowledged that he had a deformity of
his right thigh that was known by him for about two years prior to his
induction.

2.  There is no evidence of record to substantiate the applicant's current
contentions or to refute his acknowledgment at the time that his medical
condition was EPTS.  Therefore, there is insufficient evidence on which to
grant the relief requested.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 August 1962; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         19 August 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

__rjw___  __lcb____  __ljo_____  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.




            __Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005803                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050419                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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