RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 August 2004
      DOCKET NUMBER:   AR2004100278


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. John T. Meixell               |     |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 that he be shown to have been on active duty
during the period of treatment for a wrist injury that resulted in his
being medically separated.

2.  The applicant states that he was "activated" for medical care following
an injury sustained during annual training.

3.  The applicant provides copies of 21 documents from his service medical
records and personnel file.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 May 1979, the date of his separation from the National Guard.
 The application submitted in this case is dated 9 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's records show that he enlisted in Kansas Army National
Guard (KSARNG) on 19 November 1974.  He served on active duty (initial
active duty for training) from 19 November 1974 through 19 May 1975 and was
transferred  back to the KSARNG with assignment to the 137th Transportation
Company, Topeka, Kansas.

4.  On 8 August 1977, during annual training, the applicant sustained an
injury to his right wrist that was determined to have been in the line of
duty.

5.  An 18 April 1978 DA Form 2496 (Disposition Form) indicates that the
applicant had been in an incapacitation status since August 1977.  It
indicates that the National Guard Bureau (NGB) had approved payment through
February 1978.

6.  Headquarters Medical Department Activity, Fort Riley, Kansas Orders 72-
3, dated 19 May 1978, transferred the applicant to the Medical Holding
Company, Fitzsimons Army Medical Center, Denver, Colorado.

7.  On 13 September 1978, a Medical Evaluation Board (MEB) determined that
the applicant was medically unfit for further military service due to the
right wrist problem.

8.  On 19 October 1978, a Physical Evaluation Board (PEB) determined that
the applicant was not medically fit for duty due to chronic residual
impairments to his right wrist.  He was rated at 10 percent.

9.  There is no indication that the applicant contested the MEB or PEB
actions or the level of disability evaluation.

10.  The applicant's NGB Form 22 (Report of Separation and Record Service)
indicates the applicant was discharged from the KSARNG and as a Reserve of
the Army on 8 May 1979 due to a physical disability.

11.  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.  Paragraph 2-16 (Serious
injury, illness, or disease), states that:

      a.  Soldiers who incur or aggravate a serious injury, illness, or
disease in line of duty will be referred to a medical evaluation board
(MEB).  A MEB is convened to document a soldier's medical status and duty
limitations insofar as duty is affected by the member's medical status;


      b.  Soldiers who are incapacitated while in a duty status and cannot
be returned to "normal military duties" should be evaluated by a physical
evaluation board (PEB) consistent with Army Regulation 635-40; and


      c.  Soldiers who incur or contract an injury, illness, or disease in
the line of duty while in a duty or travel related status making them unfit
for continued military service will be evaluated by a PEB.  Soldiers will
not be issued active duty orders for MEB/PEB processing (emphasis added).
Travel orders, however, will be issued to soldiers who live more than 50
miles or 90 minuets from the appropriate medical facility.


DISCUSSION AND CONCLUSIONS:

1.  The record shows that the applicant was in an incapacitation pay status
not active duty pay status during the period of medical care for his right
wrist.

2.  The record contains no documentation or orders indicating that the
applicant was continued on or was recalled to active duty during the period
he was being treated for his wrist injury.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 May 1982.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__GJW__  __JTM___  __FNE__  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 N. Eichorn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100278                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040803                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135  Service credit                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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