RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 November 2004
      DOCKET NUMBER:  AR2004104763


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Patrick H. McGann             |     |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 honorable discharge of 17
June 1960 be changed to a medical discharge/retirement.

2.  The applicant states, in effect, that he was released without proper
consideration being given to the type of discharge he received.  He claims
he was released by the quickest means as a result of Congressional interest
in his case.

3.  The applicant provides a Hospital Evaluation Form (121st Evac Hosp FL
16) and a Chronological Record of Medical Care (SF 600).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 June 1960.  The application submitted in this case is
dated 3 February 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.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 18 November 1954.  He served in military
occupational specialty (MOS) 311.60 (Infantry Communications Specialist)
and the highest rank he attained while serving on active duty was sergeant
(SGT).

4.  On 13 January 1960, the applicant was issued a medical profile at the
121st Evacuation Hospital.  The 121st Evacuation Hospital Form Letter 16
issued indicates the applicant suffered from chondromalacia in both knees
that was moderately advanced.  He was issued a 3 profile in the lower
extremities and the attending physician indicated the applicant was not
suited physically for a line unit because his knee condition would not
permit him to stand or walk for more than 1 hour.  It further indicated
that if an adequate job could not be found for him in a service or support
unit that did not require a lot of walking or standing, he should not be
permitted to reenlist.

5.  A SF 600, dated 20 April 1960, confirms the applicant underwent a
orthopedic examination that determined he should be give a permanent 3
profile in the lower extremities that prohibited him from climbing,
prolonged walking or physical training.  However, it further concluded that
his condition at the time was not severe enough to warrant consideration
for a medical discharge.  It further stated that the applicant would be
able to reenlist upon the expiration of his term of service (ETS) in 1964
unless his condition progressed more rapidly than anticipated.

6.  On 27 April 1960, that applicant submitted a request to resign
unconditionally. In his request, he confirmed that an orthopedic
examination conducted on 18 April 1960 resulted in a determination that his
condition did not warrant separation processing through medical channels.
He further indicated that his wife was expected to deliver a baby on 9 May
1960 and his presence would be required due to possible medical
complications that could occur based on his wife’s kidney ailment and blood
type (RH Negative).  He concluded by indicating that he had no desire to
remain in the Army, wasting time until such time as he became a physical
liability.

7.  On 13 August 1960, Department of the Army approved the applicant’s
honorable separation under the provisions of Army Regulation 635-205, by
reason of Secretarial Authority.  On 17 June 1960, the applicant was
separated accordingly.

8.  The separation document issued to the applicant at the time confirms he
was separated under the provisions of paragraph 2, Army Regulation 635-205,
by reason of Secretarial Authority.  This document confirms he completed a
total of 5 years, 6 months and 28 days of creditable active military
service and held the rank of SGT on the date of his separation.  The
applicant authenticated this document with his signature in Item 34
(Signature of Person Being Transferred or Discharged).

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) then in effect, established the Army Physical Disability
Evaluation System (PDES) and set forth policies, responsibilities, and
procedures that applied in determining whether a soldier is unfit because
of physical disability to reasonably perform the duties of his or her
office, grade, rank, or rating.
10.  Chapter 3 of the same regulation provides guidance on presumptions of
fitness.  It states that the mere presence of impairment does not, of
itself, justify a finding of unfitness because of physical disability.  In
each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

11.  Chapter 4 of the disability regulation contains guidance on processing
through the PDES, which includes the convening of a Medical Evaluation
Board (MEB) to document a soldier's medical status and duty limitations
insofar as duty is affected by the soldier's status.  If the MEB determines
a soldier does not meet retention standards, the case will be referred to a
Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical
disability equitably for the soldier and the Army.  The PEB investigates
the nature, cause, degree of severity, and probable permanency of the
disability of soldiers whose cases are referred to the board.  It also
evaluates the physical condition of the soldier against the physical
requirements of the soldier's particular office, grade, rank, or rating.
Finally, it makes findings and recommendations required by law to establish
the eligibility of a soldier to be separated or retired because of physical
disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the narrative reason for his discharge
should be corrected and that his record should show he was medically
discharged was carefully considered.  However, insufficient evidence has
been provided to support this claim.

2.  The military medical records provided by the applicant show he was
treated for a knee condition that resulted in his receiving a 3 profile.
However, these medical records include an SF 600 that confirms he underwent
an examination by an orthopedic doctor just prior to his separation.  This
evaluation resulted in a determination that his condition was not severe
enough to warrant separation processing through medical channels, and that
he was medically qualified for retention.  As a result, there is an
insufficient evidentiary basis to conclude he suffered from a medically
disqualifying condition that warranted his being processed for a medical
separation through the Army PDES.

3.  Finally, the record confirms the applicant was properly and equitably
separated by reason of Secretarial Authority as a result of his own
voluntary request.  Therefore, it is concluded that all requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.
4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 June 1960.  Thus, the time for him
to file a request for correction of any error or injustice expired on 16
June 1963.  However, he failed to 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 his failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS_  __SLP_  _  __PHM__  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.




            ____John N. Slone_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104763                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/30                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1960/06/17                              |
|DISCHARGE AUTHORITY     |AR 635-205                              |
|DISCHARGE REASON        |Secretarial Authority                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 177   |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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