RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040006043


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 he be medically retired as of
1 September 1995.

2.  The applicant states, in effect, that he was not informed of his
options when it was determined he was medically non-deployable, or when his
enlistment came to an end.  He states that based on his disability, he
could have been medically retired because his condition prevented his
reenlistment.

3.  The applicant refers to his military medical records and his medical
records from the Department of Veterans Affairs (VA); however, he provides
no actual documentary evidence to support his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 December 1994.  The application submitted in this case
is dated 15 August 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 limitations 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’s record shows that on 26 July 1991, he was honorably
released from active duty (REFRAD) under the provisions of chapter 4, Army
Regulation 635-200, by reason of expiration of term of service (ETS).  The
separation document (DD Form 214) he was issued at the time confirms he
completed 3 years, 11 months and 29 days of active military service and
that he held the rank of specialist four (SP4) on the date of his REFRAD.

4.  On 4 December 1991, the applicant enlisted in the Georgia Army National
Guard (GAARNG) for 3 years.  He served in the GAARNG until 10 September
1992, at which time he was honorably discharged and transferred to the
United States Army Reserve (USAR).  On 21 January 1992, he was transferred
to the USAR Control Group.
5.  The last medical treatment record on file in the applicant’s record is
dated
20 May 1992.  This document shows he was treated for gas pains.  There is
no indication in the available medical records that he suffered from a
medically disabling condition that would have warranted his processing
through medical channels.

6.  On 6 December 1994, the applicant was honorably discharged from the
USAR.  There is no indication that this discharge was disability related.

7.  On 19 November 2004, a member of the Board staff advised the applicant
that the Board did not have access to VA records and that the military
medical records provided for review contained only a few documents.  The
applicant was further informed that because these medical records could
support his request, it was important for him to obtain and provide them
for review.  Finally, the applicant was informed that his case would
continue to process since it contained the minimum information necessary
for a Board review, but that he could provide any supporting medical
records prior to the Board’s actual review of his case.  To date, the
applicant failed to provide any additional documentary evidence to support
his application.

8.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers)
establishes procedures and policies and implements statutory authorities
regarding medical, dental, hospitalization, and disability benefits;
incapacitation compensation; and death benefits; as well as reporting
requirements on these entitlements for Reserve Component (RC) Soldiers.
Paragraph 3-2 provides guidance on qualifying for Army disability benefits.
 It states, in pertinent part, that in order to be eligible for a
disability retirement, RC Soldiers must be disabled from injury, illness,
or disease incurred while serving in a duty or travel status.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 Separation by reason of disability requires processing through the PDES.
Chapter 4 contains guidance on processing through the PDES, which includes
the convening of a Medical Evaluation Board (MEB) to document a Soldier's
medical status and duty limitations insofar as duty is affected by the
Soldier's status.  If the MEB determines a Soldier does not meet retention
standards, the case will be referred to a Physical Evaluation Board (PEB).


10.  Chapter 4 of the same regulation further states that the PEB evaluates
all cases of physical disability equitably for the Soldier and the Army.
The PEB investigates the nature, cause, degree of severity, and probable
permanency of the disability of Soldiers whose cases are referred to the
board.  It also evaluates the physical condition of the Soldier against the
physical requirements of the soldier's particular office, grade, rank, or
rating.  Finally, it makes findings and recommendations required by law to
establish the eligibility of a Soldier to be separated or retired because
of physical disability.

11.  Chapter 8 of the disability regulation contains the rules and policies
for disability processing of RC Soldiers on active duty.  It states, in
pertinent part, that a RC soldier will be referred for medical processing
through the PDES when a commander or other proper authority believes that
soldier is unable to perform the duties of his or her office, grade, rank,
or rating because of physical disability. It further stipulates that in
order for Soldiers of the RC to be compensated for disabilities incurred
while performing duty for 30 days or less, there must be a determination
made by the PEB that the unfitting condition was the proximate result of
performing duty.  Proximate result establishes a casual relationship
between the disability and the required military duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should have received a disability
retirement was carefully considered.  However, by regulation, in order for
a RC Soldier to qualify for a disability retirement, there must be evidence
showing that he/she incurred an illness, injury or disease while serving in
a duty or travel status.  There is no evidence satisfying this regulatory
criteria in this case.

2.  The evidence of record is also void of any medical evidence that
suggests the applicant suffered from a medically disabling condition that
would have warranted his processing through the Army’s PDES.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.
4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 December 1994.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 5 December 1997.  However, he failed to 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_  __BJE___  ___LMD_  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                 |AR20040006043                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1994/12/06                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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