RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20050000002


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 discharge be changed to
physical disability separation or retirement.

2.  The applicant states that he was disabled from active duty and should
have received a medical discharge.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 February 1971.  The application submitted in this case
is dated 17 December 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 records show he was inducted on 5 February
1969.  He completed training as an infantryman and served in Vietnam where
he was awarded the Bronze Star Medal, the Air Medal, the Army Commendation
Medal, the Vietnam Service Medal with 2 bronze service stars, the Vietnam
Campaign Medal with 1960 device, and the Combat Infantryman Badge.

4.  On 4 February 1971 he was released from active in pay grade E-4 and
transferred to the Army Reserve Control Group (Annual Training) with an
honorable characterization due to the expiration of his term of service.

5.  On 1 May 1977 the applicant enlisted in the Army National Guard (ARNG)
for 1 year.  On 10 May 1978 he was separated from the Army Reserve with an
honorable discharge.

6.  There are no medical records contained in the available records.
7.  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.

8.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability, he
must be unable to perform the duties of his office, grade, rank or rating.


9.  Army Regulation 635-40, paragraph 2-2b, then in effect, 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.  The applicant's continued performance of duty raised a presumption of
fitness which he has not overcome by evidence of any unfitting, acute,
grave illness or injury concomitant with his separation.

2.  There is no available evidence that the applicant had any medically
unfitting condition which required physical disability processing.
Therefore, there is no basis for changing the reason for his separation to
physical disability retirement or separation at this late date.

3.  Furthermore, his affiliation with the ARNG several years after he left
active duty argues against the probability that he had some disabling
condition at the time of his 1971 separation from active duty.

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 4 February 1971; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 3 February 1974.  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

__JEA___  __BPI ___  __MJF__  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.




                                  _    James E. Anderholm________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000005                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . .                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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