RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20050000229


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 medical discharge be
corrected to read disability incurred in service and aggravated by the
military instead of reading disability, existed prior to service (EPTS).

2.  The applicant states, in effect, that the Medical Evaluation Board
(MEB) proceedings stated that he had a hiatal hernia 4 days after birth and
his medical records show that he had a repair of tracheal esophageal
fistula 8 days after his birth.  The applicant further states that it took
him over a year to obtain medical records to prove his case.

3.  The applicant provides copies of medical records showing treatment
during the period 29 April 1977 through 28 September 1977 in Germany and
excerpts from his service military records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 27 May 1999, the dated he was released from active duty.  The
application submitted in this case is dated 22 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 that he enlisted in the North
Carolina Army National Guard on 8 May 1998 for a period of 8 years.

4.  On 8 May 1998, the applicant was ordered to initial active duty for
training for approximately 25 weeks or completion of basic and military
occupational specialty training.

5.  On 12 April 1999, an MEB found the applicant unfit for duty due to
hiatal hernia and status post Nissen fundoplication.  The MEB also
determined that the applicant's conditions were not incurred while entitled
to base pay and existed prior to service.  The MEB made no determination
whether the conditions were permanently aggravated by service.  The MEB
recommended that the applicant be discharged under the provisions of
Chapter 5 of Army Regulation 635-40 (Physical Evaluation for Retention,
Retirement, or Separation).

6.  The applicant did not present any statement in his own behalf.

7.  On 13 April 1999, the applicant requested discharge based on the
findings and recommendation of the MEB.  The applicant acknowledged that he
had a right to have his case considered by a Physical Evaluation Board
(PEB) and that he elected not to exercise this right.  The applicant
further acknowledged that the Department of Veterans Affairs (DVA) would
determine any entitlement he may have to veterans’ benefits.  The applicant
acknowledged that if his request for discharge was approved he would be
separated by reason of an EPTS physical disability.

8.  On 15 April 1999, the appropriate authority approved the findings and
recommendation of the MEB.

9.  On 16 April 1999, the applicant acknowledged that he had been informed
of the approved findings and recommendation of the MEB and that he agreed
with the MEB's finding and recommendation.

10.  A memorandum from the Physical Evaluation Board Liaison Officer
(PEBLO), dated 26 April 1999, stated that the applicant had been fully
counseled and offered an expeditious discharge under the provisions of
Chapter 5 of Army Regulation 635-40.  The PEBLO further stated that the
applicant requested separation from military service by reason of an EPTS
physical disability.

11.  On 24 May 1999, the appropriate authority approved the applicant's
request for discharge and directed that he be released from active duty and
returned to the appropriate State Adjutant General for discharge.

12.  On 27 May 1999, the applicant was released from active duty by reason
of disability, existed prior to service - medical board and returned to the
Adjutant General, North Carolina.  The applicant had completed 1 year and
20 days of active service that was characterized as honorable.  The highest
grade held by the applicant was private/pay grade E-2.

13.  On 27 May 1999, the applicant was discharged from the North Carolina
Army National Guard and as a Reserve of the Army.

14.  Army Regulation 635-40 provides that the medical treatment facility
commander with the primary care responsibility will evaluate those referred
to him and will, if it appears as though the member is not medically
qualified to perform duty or fails to meet retention criteria, refer the
member to a medical evaluation board.  Those members who do not meet
medical retention standards will be referred to a PEB for a determination
of whether they are able to perform the duties of their grade and military
specialty with the medically disqualifying condition.

15.  Army Regulation 635-40, chapter 5, provides for separation of an
enlisted Soldier for non-service aggravated EPTS conditions when Soldier
requests waiver of PEB evaluation.  This chapter is applicable to enlisted
Soldiers on active duty for more than 30 days.  If the time period exceeds
6 months or if the condition is disqualifying under AR 40-501, chapter 3, a
Soldier is entitled to evaluation by a PEB or may waive evaluation under
this chapter.

16.  Army Regulation 635-40 further requires that the Soldier be eligible
for referral into the disability system, not meet medical retention
standards as determined by a medical board, and the disqualifying defect or
condition to have existed prior to entry on the current period of active
duty and not aggravated by such duty.

17.  Army Regulation 635-40 also requires the Soldier be mentally
competent; that knowledge or information about the Soldier's medical
condition would not be harmful to the Soldier’s well being; and further
hospitalization or institutional care is not required.  If after being
advised of the right to a full and fair hearing, the Soldier still desires
to waive PEB action and the Soldier has been advised that a PEB evaluation
is required for receipt of Army disability benefits, but waiver of the PEB
will not prevent applying for DVA benefits, the Soldier may be separated.
Unless otherwise indicated, the soldier will be separated with an honorable
or general discharge.  If the Soldier is in an entry level status at the
time of processing, the service may be described as uncharacterized.

18.  Title 38, United States Code, permits the DVA to award compensation
for disabilities which were incurred in or aggravated by active military
service.  The DVA can evaluate a veteran throughout his or her lifetime,
adjusting the percentage of disability based upon that agency’s
examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his medical discharge should be corrected
to read disability incurred in service and aggravated by the military.

2.  The applicant contends that the it took him over a year to obtain
records that show he had a repair of tracheal esophageal fistula 8 days
after his birth instead of a repair of a hiatal hernia 4 days after birth
as stated in the MEB.
3.  In view of the fact that it took the applicant over a year to obtain
his medical records from Germany, it is reasonable to presume that these
records were not available for review by the MEB.  Therefore, it is
reasonable to presume that the history of the applicant's medical condition
was provided by the applicant himself.

4.  The MEB did not make a determination as to whether or not the
applicant's conditions were aggravated by military service.

5.  Disabilities which worsen or shown to be aggravated by military service
after a Soldier is separated are treated by and compensated for by the DVA.
 Any claims or issues concerning treatment or compensation for service
connected disabilities should be addressed to that Agency.

6.  The applicant was fully counseled and chose to waive his right to have
his case considered by a PEB and requested a discharge by reason of an EPTS
disability.

7.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

8.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to show that an injustice occurred.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 May 1999, the dated he was released
from active duty; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 26 May 2002.  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

___lmd__  ____reb _  ___lf____  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.




                                  ________Ronald E. Blakely_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000229                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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