RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050015308


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 be
changed to show that he was separated or retired by reason of physical
disability.

2.  The applicant states, in effect, that he was injured before his
extension of enlistment was implemented and was unjustly discharged, rather
than separated or retired by reason of physical disability.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 June 1980, the date of his release from active duty (AD).
The application submitted in this case is dated 23 May 2005 but was
received for processing on 25 October 2005.

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 enlisted in the U. S. Army
Reserve (USAR) on 29 December 1976, for 6 years, with an established
expiration of term of service (ETS) of 28 December 1982.  He enlisted in
the Regular Army on 20 June 1977, as a unit supply specialist (76Y), for
3 years, with an established ETS of 19 June 1980.  He was promoted to
specialist four on 1 October 1978.  He continued to serve until he was
released from active duty (REFRAD) on 19 June 1980.  He was transferred to
the USAR Control Group (Reinforcement). He was honorably discharged on
28 December 1982.

4.  There is no documentary evidence the applicant was in the process of
extending his enlistment.

5.  The evidence shows that the applicant signed his DD Form 214.  The DD
Form 214 he signed clearly shows he was being released from active duty at
the completion of his required service.

6.  There is no evidence of record that the applicant requested a
separation medical examination and his medical records are unavailable for
review.

7.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the medical evaluation board determines the Soldier does not
meet retention standards, the board will recommend referral of the Soldier
to a physical evaluation board.

8.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a Soldier to be
separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence, and there is none in the
available records, to show that he was injured prior to his ETS.

2.  The applicant's separation medical examination and medical records are
unavailable for review.  There is no evidence, and the applicant has
provided no evidence, to show that he is suffering from unfitting
paraplegia which resulted from an injury that he alleges he sustained just
prior to the date he was to extend his enlistment.  The evidence clearly
shows that he was REFRAD and was honorably discharged.




3.  There is no documentary evidence the applicant was in the process of
extending his enlistment when he reached his ETS date.

4.  There is no documentary evidence in the applicant's service personnel
records to show he underwent a separation physical examination prior to his
REFRAD.  Had he undergone a separation physical examination and had he been
diagnosed to have unfitting paraplegia, it is logical to assume the Army
would not have released him from active duty and in all likelihood would
have referred him for appropriate disability processing.

5.  The Board notes that the applicant delayed applying for a correction of
his military record from 19 June 1980 to 23 May 2005 (even though the
application was not mailed until late October 2005), some twenty-five years
later.

6.  Based on the evidence provided, the applicant is not entitled to a
change of the reason or the authority for his honorable discharge to show
that he was separated or retired by reason of physical disability.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 June 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 18 June 1983.  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

___JEV__  ___BJE_  _DLL____  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. Vick_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015308                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19821228                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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