RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040008051


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 the authority under which he
was separated, and which appears on his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), be corrected.

2.  The applicant states, in effect, that his DD Form 214 shows that he was
separated under the authority of Army Regulation (AR) 635-40A.  He states
that he should have been separated under the authority of AR 635-40.

3.  The applicant provides

      a.  A copy of his DD Form 214.

      b.  An undated document from the Department of Veterans Affairs.

      c.  A document titled "Stop Loss (Active Army-Enlisted).

      d.  Army Regulation 635-40a (Personnel Separations).

      e.  Army Regulation 635-40 (Physical Evaluation for Retention,
Retirement, or Separation).

      f.  Army Regulation 635-89 (Personnel Separations – Homosexuality).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 February 1961, the date of his separation.  The application
submitted in this case is dated 13 September 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 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 was inducted into the Army of the United States for 2
years on 2 December 1960.  He served on active duty for 2 months and 13
days before being separated for a physical disability which existed prior
to his entry on active duty.

4.  Following his entry on active duty, the applicant was given a medical
examination on/about 11 January 1961 which revealed that he had a duodenal
ulcer without obstruction.  He was given a medical board on 27 January 1961
which recommended that he be separated for a pre-existing medical
condition, not aggravated by military service.

5.  The applicant's DD Form 214 indicates that he was separated by reason
of "Physical Disability EPTS" (existing prior to service).  The authority
for separation was listed as AR 635-40A (Personnel Separations – Physical
Evaluation for Retention, Separation or Retirement for Physical
Disability).  AR 635-40A was one of three regulations dealing with physical
disability, the others being AR 635-40B and AR 635-40C.  These regulations
were replaced in May 1967 by AR 635-40 (Physical Evaluation for Retention,
Retirement, or Separation).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his authority for separation as shown on
his DD Form 214 is incorrect.  He believes that the correct authority
should be AR 635-40, not AR 635-40A.

2.  AR 635-40 superseded AR 635-40A/635-40B/635-40C in May 1967.  The
applicant was separated in February 1961.

3.  The applicant was separated under the proper authority in effect at the
time of his service.  There is no error on his DD Form 214 relating to the
authority under which he was separated.

4.  AR 635-89 (Personnel Separations – Homosexuality) has nothing to do
with the applicant's separation.  However, when an internet search for AR
635-40A is conducted on a search engine such as "Google," this regulation
is found because it mentions AR 635-40A.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 February 1961; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
13 February 1964.  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

__lds___  __phm___  __lgh___  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.



                                        Linda D. Simmons
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008051                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040726                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19780619                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 5                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.2400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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