RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20040011083


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 transfer to the Retired
Reserve be changed to Physical Disability Retirement.

2.  The applicant states that his knees were injured in a bus accident on
19 August 1990 and that he has been on a permanent physical profile since
that time.  Climbing steps or ladders, prolonged setting or walking all
cause severe pain which made performing his duties at drills a problem.

3.  The applicant provides an undated personal statement and copies of his
NGB Form 22 (National Guard Report of Separation and Record of Service), a
22 August 1990 medical record narrative entry and two memoranda to his Army
National Guard (ARNG) chain of command requesting his discharge be changed
to medical.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 May 1998, the date of his transfer to the Retired
Reserve.  The application submitted in this case is dated 10 May 2003, but
was received on 30 November 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's military personnel records show that following an
initial tour of active duty from September 1971 to September 1973 the
applicant became a career ARNG Soldier in 1976.  He was promoted to
sergeant (E-5) on 1 July 1979.

4.  A 7 January 1993 Physical Evaluation Board found the applicant
physically fit and recommended that he be returned to duty with a physical
profile limiting his activities.  The findings and recommendation of the
Board were approved on 21 January 1993.
5.  The applicant's Noncommissioned Officer Evaluation Reports (NCOERs) for
the periods ending November 1992 and 1993 note that he did not complete the
Army Physical Fitness Test (APFT) due to being on profile.  The NCOER for
the period ending November 1996 noted that he failed the APFT and the one
ending November 1997 noted that he did not take the APFT and that he needed
to work to complete the APFT.

6.  On 23 May 1998, the applicant was separated from the Kentucky ARNG due
to non-selection by a selective retention board.  He was transferred to the
Retired Reserve as a sergeant (E-5).

7.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when
a member is being separated by reason other than physical disability, his
continued performance of duty creates a presumption of fitness which can be
overcome only by clear and convincing evidence that he was unable to
perform his duties or that acute grave illness or injury or other
deterioration of physical condition, occurring immediately prior to or
coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1.  There is no available evidence to show that the applicant was unable to
perform his military duties.

2.  Even if he were on a permanent physical profile, and the record is not
clear on that point, because his last two NCOERs faulted him for failing or
not taking the APFT; he would not be eligible for disability separation
unless he was physically unable to perform his assigned duties.

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 23 May 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 22 May 2001.  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

__TSK __  __PHM __  __CAK__  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.




                                  _      Ted S. Kanamine________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011083                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051013                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |142.00                                  |
|2.                      |108.04                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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