RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           03 AUGUST 2004
      DOCKET NUMBER:  AR2004100254


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Gail Wire                     |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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, a disability separation.

2.  The applicant states that he hurt his hand during basic training, was
treated and discharged with nothing.  His hand has gotten worse and he
feels the Army should be held liable for his injury.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 13 July 1981.  The application submitted in this case is dated
22 October 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 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 enlisted in the Regular Army on 12 June 1981, for a
period of
3 years.

4.  On 25 June 1981, an Entrance Physical Standards Board (EPSBD)
recommended that although the applicant met the retention criteria, it was
in the best interest of the applicant medically and the U.S. Government, to
separate him from active duty under the provisions of Army Regulation 635-
200, paragraph 5-7.  The EPSBD proceedings noted that the applicant had a
fracture to his metacarpal prior to his entering the service and had a
recurrence of pain in his right hand.  An examination of his right hand
revealed an old fracture at the base the 5th metacarpal.  Due to the
medical problem which existed prior to service (EPTS) the applicant would
be unable to complete basic training in a satisfactory manner, and would
have problems with push-ups, pull-ups, over-head bars, and any work with
weapons, and would have repeat visits to sick call.

5.  On 25 June 1981, the applicant was issued a physical profile which
limited his assignments to those not handling heavy material, including
weapons, as well as no over-head work, no pull-ups and no push-ups.  This
profile was to remain in effect until completion of his medical board.

6.  On 26 June 1981, the applicant requested separation.  He stated that he
understood that even though he did not meet procurement medical fitness
standards he could request retention on active duty to complete the period
of service for which he had enlisted.  He declined to apply for retention.

7.  On 2 July 1981, the findings of the EPSBD were approved by the medical
authority.

8.  On 13 July 1981, the applicant was honorably discharged under the
provisions of Army Regulation 635-200, paragraph 5-7, for failure to meet
procurement medical fitness standards.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) indicates he had 29 days of active
service.

9.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel from active duty.  Paragraph 5-7 provides for the
early separation (within the first six months) of those individuals who
were not qualified under procurement medical standards, who manifested
symptoms of medical problems that would have made them not qualified under
procurement medical standards or who became not qualified prior to entry.
Although a soldier in such circumstance has a right to request retention,
an individual has no right to be retained.  The retention or separation
decision is within the cognizance of the appropriate discharge authority.

10.  Army Regulation 40-501 pertains to medical fitness standards for Army
personnel.  Chapter 2 provides that individuals with a history of healed
disease or injury of the wrist, elbow, or shoulder with residual weakness
or symptoms of such a degree as to preclude satisfactory performance of
duty are disqualified for appointment, enlistment or induction.

11.  Army Regulation 635-40 also provides that individuals who are unfit by
reason of physical disability neither incurred nor aggravated during any
period of service will be separated without entitlement to benefits.

12.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.
2.  The applicant’s injury to his hand existed prior to his entering the
military, and was not as a result of his military service, therefore he is
not entitled to disability separation.

3.  The applicant requested separation from the Army, and declined the
option of applying for retention.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 July 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
12 July 1984.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  ___JM __  ___GW __  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.




            _____Fred Eichorn______
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004100254                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040803                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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