RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 May 2005
      DOCKET NUMBER:  AR20040006886


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 he be advanced in rank.

2.  The applicant states that, as a result of having been diagnosed as
having infectious hepatitis, he was hospitalized at Fort Bragg, NC.
Following weeks of treatment, he was transferred to Letterman Army Medical
Center in San Francisco, CA.  A few weeks later, his attending physician
determined that he was fully recovered and recommended six months temporary
retirement for convalescence before return to full duty.  He agreed to this
and was presented to the Physical Evaluation Board (PEB) on 9 May 1951.
The PEB approved the recommendation; however, The Adjutant General's Office
determined his retirement should be permanent.  He did not object to that
because his physician assured him he needed a period of further rest and
recovery before returning to fully duty.  After six months of monthly
evaluation, if all went well, his physician would recommend his restoration
to full duty.  He did so, but the response was that restoration to duty was
not possible because, once permanently retired, an officer cannot be
restored to duty.

3.  The applicant states that the decision was devastating to him.  Despite
his best efforts, he was also restricted from participating in the Army
Reserve.  Now, as a resident of a retired officers' community, he finds
himself as very junior to his immediate associates and neighbors, many of
whom achieved their higher rank in the Reserve.  He feels it would be
reasonable to recognize the unintended circumstances of his premature
retirement from the Army by granting him advancement to a brevet field
grade rank more commensurate with his colleagues.

4.  The applicant provides his separation orders and a letter from The
Adjutant General's Office dated 6 June 1951.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 July 1951.  The application submitted in this case is dated
24 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.  After having had prior service, the applicant was ordered to active
duty as a commissioned officer on 10 September 1946.

4.  On 9 May 1951, a PEB convened to determine if the applicant was fit for
duty. At the PEB, the applicant testified that he had originally contracted
infectious hepatitis around June 1947.  It had recurred three times since
that date, the last time being in July 1950, for which he was presently
hospitalized.  He testified that he did not believe he could perform full
duty at that time.  He was currently on a restricted diet and believed that
he was showing progressive improvement.

5.  The PEB found the applicant to be unfit with a disability rating of 30
percent or more and the disability "(may be of a permanent nature)" and
recommended re-evaluation in January 1952.  On 16 May 1951, the applicant
indicated he did not desire to exercise the right of rebuttal.

6.  On 5 June 1951, the Physical Review Counsel approved the findings of
the PEB with the exception of finding the disability "is permanent."

7.  On 6 June 1951, The Adjutant General's Office notified the applicant
that a review of the PEB indicated that his hepatitis had existed since
1947, and since little change could be expected within the next six months,
it should be considered permanent and rated at 30 percent incapacitating.
He was given the opportunity to rebut the finding.

8.  On an unknown date, the applicant indicated he did not desire to
exercise the right of rebuttal in his case.

9.  On 25 June 1951, the Office of The Adjutant General approved the
modified findings and recommendation of the PEB.

10.  The applicant was counseled that he could apply for relief from active
duty as a commissioned officer and appointed as a Regular Army warrant
officer, and subsequently be retired by reason of physical disability with
advancement to the highest grade held.  He accepted that appointment.  It
was subsequently determined that he did not meet the criteria for
advancement to the highest grade held as he did not serve on active duty as
a captain for at least six months.  Because of the improper counseling, an
exception to policy was granted and he was considered eligible for
retirement with the rank and pay of captain.

11.  On 31 July 1951, the applicant was released from active duty and
retired in the rank of captain by reason of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  It is noted the applicant's physician may have determined he was fully
recovered and recommended six months temporary retirement for convalescence
before return to full duty.  However, it is also noted that the applicant
testified at his PEB that that he did not believe he could perform full
duty at that time.  At best, as he was currently on a restricted diet, he
believed he was showing progressive improvement.  There was no indication
that his improvement would have continued to progress had he been taken off
his restricted diet.  Considering the country was at war at that time, it
is likely that had he returned to full duty and then been sent to the
combat zone his hepatitis would have returned once again.

2.  It is acknowledged that the applicant contends he did not object when
informed his retirement should be permanent because his physician assured
him he needed a period of further recovery before returning to full duty.
However, as a commissioned officer he should have realized that a decision
by The Adjutant General's Office would override anything his physician
might have told him.  He accepted permanent retirement.  There are no
provisions for returning to active duty after a retirement, except as a
retiree recall.  Even then, there are no provisions for promoting a retiree
recall.

3.  Regrettably, there is an insufficient basis on which to grant the
applicant's request.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1951; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         30 July 1954.  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

__jlp___  __bpi___  __au____  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.




            __Jennifer L. Prater__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006886                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050510                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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