RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20050000130


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick 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, disability retirement or separation.


2.  The applicant states he was discharged from Walter Reed Hospital after
being hospitalized for “about a year and a half.”  He states that he feels
he should have been given a medical discharge and some severance pay and
notes that he was unable to work because of his “condition.”  He states
that he was “wronged” by the military and now asks that the military “make
it right.”

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 April 1961.  The application submitted in this case is
dated
14 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.  Records available to the Board indicate that the applicant enlisted and
entered active duty on 31 March 1958 for a period of 3 years.

4.  In May 1959, while assigned to a military unit in Germany, the
applicant was diagnosed with infectious hepatitis and ultimately evacuated
to a Naval hospital in New York.  A liver biopsy done at the Naval hospital
showed “the impression of viral cholangio hepatitis” and throughout the
fall of 1959 the applicant had symptoms consisting of easy fatigability and
poor appetite, although he had no jaundice and the “liver function studies
were relatively normal with the exception of the transaminase…”





5.  In January 1960, because of a prolonged convalescent period, the
applicant was transferred to the United States Army Hospital at Fort
Devens, Massachusetts.  By May 1960 the applicant’s had “symptomatically
improved and was fully ambulatory, noting very minimal fatigue on moderate
activity, good appetite with a gain in weight, and no other symptoms.”  He
was assigned to duty at Fort Dix, New Jersey.

6.  However, with the resumption of his military duties he became easily
fatigued and his “acholic stools” returned.  He also complained of
intermittent pain in the right upper quadrant, and on two occasions had
fainting episodes.  As a result he was hospitalized at Fort Dix in July
1960.  His initial tests were normal and during his hospitalization on
light activity, he remained asymptomatic, had a good appetite with no
weight loss, and no jaundice.  Ultimately, it was determined that the
applicant had a “chronic type of hepatitis” and was accordingly presented
to a Medical Evaluation Board which recommended referral to a Physical
Evaluation Board.

7.  The Physical Evaluation Board, convened in October 1960 recommended an
additional 6 months of hospitalization to permit stabilization and better
evaluation of his case.

8.  He was transferred to Walter Reed General Hospital in December 1960.  A
December 1960 liver biopsy showed an impression of an “end stage of healed
infectious hepatitis, with no evidence of residual liver disease.”  He was
given no medication and allowed out of the hospital on a “quarters status”
during most of his stay and performed full physical activity and did part-
time work.

9.  By March 1961 medical officials concluded that the applicant’s
infectious hepatitis, with a prolonged convalescent course over a two-year
period, had healed with no permanent liver residuals or damage, and that he
had obtained maximum hospital benefit.  Because of information contained in
an earlier letter from The Adjutant General, the applicant, in spite of the
Medical Evaluation Board’s conclusion that the applicant was fit, referred
his case to a Physical Evaluation Board.

10.  The applicant, who was scheduled to separate from the Army on 30 March
1961, voluntarily requested to remain on active duty beyond his scheduled
separation date in order for his disability processing to be finalized.




11.  Documents in the applicant’s file indicate that a Physical Evaluation
Board (PEB) convened on 16 March 1961 and concluded that the applicant was
fit for duty.  The actual PEB proceedings were not in files available to
the Board.  The recommendation of the PEB was approved on 14 April 1961.

12.  On 18 April 1961, after being retained on active duty for 16 days
beyond his originally scheduled separation date, the applicant was released
from active duty, with an honorable characterization of service, as a
result of the expiration of his enlistment contract.  He was transferred to
the United States Army Reserve.

13.  Army Regulation 635-40, which establishes the policies and provision
for disability processing, states that each case is first considered by an
informal PEB.  If the applicant accepts the findings and recommendation of
the informal PEB, the proceedings will be approved for the Secretary of the
Army and forwarded for final disposition.  If the Soldier nonconcurs with
the findings, he may ask for a formal PEB.  There is no indication that a
formal hearing was convened.

14.  The regulation also notes that the first and most important
determination made by a PEB is whether the Soldier is physically fit or
unfit to perform the duties of the Soldier’s office, grade, rank, or
rating.  The determination of physical fitness will be made by relating the
nature and degree of physical disability of the Soldier to the requirements
and duties that the Soldier may reasonably be expected to perform in his of
her primary specialty.

15.  Title 10, United States Code, section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.

16.  Title 10, United States Code, section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  In spite of the fact that the applicant may have been hospitalized for
an extensive period of time, the fact remains that ultimately he was found
fit for duty and could have, if he so chose, reenlisted and continued his
military service.  The applicant, however, chose to separate from active
duty at the conclusion of his enlistment contract.

2.  The applicant would have been involved in his disability processing, as
is evident by his voluntary agreement to remain on active duty beyond his
scheduled separation date in order to finalize his disability process.  The
absence of any evidence that a formal PEB was initiated suggests that the
applicant concurred with the findings and recommendation of the informal
board.  His belief now, more than 40 years after the fact, that he should
have been medically retired or separated is not evidence that any error or
injustice occurred in the processing of his case, or justification that the
basis for his 1961 discharge should be changed.

3.  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 the aforementioned requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 April 1961; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
17 April 1964.  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

___BE __  ___KW __  __PM___  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.




                                  ______Barbara Ellis________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000130                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|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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