RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2006
      DOCKET NUMBER:  AR20060003423


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla J.N.Troup               |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John G. Heck                  |     |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, 2 years and 8 months of reserve
service credit.

2.  The applicant states, in effect, that the U.S. Army did not fulfill its
contract with him because he did not receive a medical examination at the
time of his separation from active duty.  He also states, in effect, that
his medical records show that he began seeing a medical doctor at the
Department of Veterans Affairs (VA) shortly after his separation from the
Army.  He further states, in effect, that if he had received a medical
examination prior to his separation, his benefits may have started at that
time.

3.  The applicant provides a copy of a DA Form 2496 (Disposition Form),
dated 21 May 1982, subject:  Statement of Option Pertaining to Medical
Examination for Separation/Retirement; VA Form 21-6789 (Deferred Rating
Decision), dated 19 May 2004; VA Form 119 (Report of Contact), dated 7 June
2004; and Department of VA, VA Regional Office, Waco, Texas, case filing
(pertaining to the applicant), dated 26 October 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 July 1982; the date of his release from active duty.  The
application submitted in this case is dated 21 February 2006.

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 service records show that he enlisted in the
U.S. Army Reserve (USAR) on 28 March 1979 for a period of 6 years and
entered active duty in the Regular Army (RA) for a period of 3 years on 18
July 1979.  Upon completion of basic combat training and advanced
individual training, the applicant was awarded military occupational
specialty (MOS) 31J (Teletypewriter Repairman).  The applicant was
honorably separated from the RA on 22 July 1982 after serving on active
duty for a total of 3 years.
4.  The applicant's military service records contain a copy of
Headquarters,
573rd Personnel Service Company, Fort Bragg, North Carolina, Orders 68-6,
dated 6 April 1982, and Orders 91-56, dated 7 May 1982.  These documents
show, in pertinent part, that the applicant was released from active duty
on
22 July 1982 and that his Military Selective Service Act obligation ended
on
27 March 1985.

5.  The applicant's military service records contain a copy of a DA Form
664 (Service Member's Statement Concerning Application for Compensation
from the Veterans Administration), dated 20 May 1982.  Item 2 (Instructions
to Personnel Being Separated) of this document shows, in pertinent part,
that the applicant was informed "[y]ou are further advised that, if you do
not apply for compensation from the Veterans Administration by completing
VA Form 21-526e at the time of separation, you may do so at any time
thereafter, that, if you do intend to file, it is advisable to do so before
you leave the service as at that time your medical records are more easily
obtainable and action by the Veterans Administration on your claim will be
expedited thereby; and that filing VA Form 21-526e will in no way delay
your separation.  Item 3 of the document shows that the applicant placed
check marks next to the statements, "I have not filed application for such
compensation on VA Form 21-256e" and "I understand that I may file after I
separate from the Army."  Item 5 (Signature of Member Being Separated) of
this document also shows that the applicant affixed his signature to the
document.

6.  The applicant's military service records contain a copy of a DA Form 31
(Request and Authority for Leave) which shows that the applicant departed
on terminal leave on 22 May 1982 and remained on leave through his
separation date of 22 July 1982.

7.  The applicant's military service records contain a copy of a DD Form
214 (Certificate of Release or Discharge from Active Duty), with an
effective date of 22 July 1982.  This document shows that at time of his
separation from active duty the applicant completed 3 years of net active
service and had completed
3 months and 20 days of prior inactive service.  Item 29 (Dates of Time
Lost During This Period) contains the entry "800818-800822."  This document
also shows that the applicant was transferred to the USAR Control Group
(Reinforcement), Reserve Components, 9700 Page Boulevard, St. Louis,
Missouri  63132, and that his Reserve Obligation Termination Date was
27 March 1985.

8.  The applicant's military service records contain a copy of
Headquarters, U.S. Army Reserve Personnel Center, St. Louis, Missouri, DARP-
AIR-R(N1) Orders D-03-021196, dated 27 March 1985.  This document shows, in
pertinent part, that the applicant was honorably discharged from the Ready
Reserve, effective 27 March 1985, based upon completion of his Military
Selective Service Act obligation.  This document also contains an
annotation at the bottom of the order that reads "[s]ubject being
discharged although assigned to this organization, is not present for duty.
 Discharge certificate and discharge orders are being mailed to last known
address this date, 19 April 1985."

9.  The applicant's military service records are absent documentation
related to his Health Treatment Records.

10.  In support of his application, the applicant provides a copy of a DA
Form 2496, dated 21 May 1982, subject:  Statement of Option Pertaining to
Medical Examination for Separation/Retirement which shows, in pertinent
part, that the applicant indicated he did not desire a separation medical
examination.  This document also shows, that the doctor or physician
assistant indicated that a medical examination for the applicant's
separation was required.  The VA Form 21-6789, VA Form 119, and Department
of VA case file pertaining to the applicant show, in pertinent part, that
the applicant received a medical examination upon entry in the Army, that
there is no record of a separation medical examination, and that on 18
August 2005 the VA confirmed and continued denial of service connection for
the applicant's stomach condition and other medical conditions that he
claimed.

11.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical
fitness standards for enlistment, induction, and appointment of officers;
medical fitness standards for retention and separation, including
retirement; and physical profiles and medical examinations.  Chapter 8
(Medical Examinations - Administrative Procedures) provides general
administrative policies relative to military medical examinations and
requirements for periodic, separation, mobilization, and other medical
examinations.  Paragraph 8-23 (Separation and retirement examinations)
provides, in pertinent part, that Soldiers separating from the Army will
receive a separation medical examination if the Soldier requests it, or if,
on review of the medical records or a medical interview, a physician, a
physician assistant, or a nurse practitioner feels an examination is
appropriate.  Table 8-2 (Schedule of Separation Medical Examination)
provides, in pertinent part, that a medical examination is not required
upon expiration of term of active service (separation or discharge, less
that 20 years of service); however, a medical examination can be requested
by the Soldier in writing.  This document also provides, in pertinent part,
that a medical examination is required if, upon review of health record,
the evaluating physician or physician assistant at the servicing medical
treatment facility determines that, because of medical care received during
active service, medical examination will serve the best interests of the
Soldier and Government.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should be credited with 2
years and 8 months of reserve service because the U.S. Army did not fulfill
its contract by ensuring he received a medical examination prior to his
separation from active duty.  He also contends, in effect, that had he
received a separation medical examination, his medical benefits may have
started at that time.  However, the applicant provides insufficient
evidence in support of his claim.

2.  The evidence of record shows that the applicant served on active duty
for a period of 3 years.  The evidence of record also shows that he
completed
3 months and 20 days of inactive service prior to this period of active
duty.  The evidence of record further shows that the applicant fulfilled
his 6-year Military Selective Service Act obligation by serving 2 years, 8,
months, and 6 days in the USAR Control Group (Reinforcement) subsequent to
his release from active duty.  Consequently, the applicant's active and
inactive military service is properly documented in his military service
records.  Therefore, he is not entitled to correction of his records to
show additional creditable reserve service.

3.  The evidence of record shows that on 20 May 1982 the applicant was
informed that it is advisable to apply for compensation from the VA at the
time of separation because his medical records would be more easily
obtainable and action by the Veterans Administration on his claim would be
expedited.  The evidence of record also shows that on 21 May 1982, the
applicant declined (in writing) a separation medical examination, despite a
determination by the reviewing medical official that the applicant undergo
a separation medical examination.  The evidence of record further shows
that on 22 May 1982, the applicant voluntarily departed his unit on
terminal leave and remained on leave through the date of his separation
from active duty.  In essence, the applicant declined a separation medical
examination in writing, chose to ignore the medical official's
recommendation to undergo a separation medical examination by departing
from his unit on terminal leave the day following the medical official's
recommendation, and willingly foreclosed on his opportunity to receive a
separation medical examination by remaining on leave through the date of
his separation from active duty.  In view of all the foregoing, and despite
being advised of the benefits of undergoing a separation medical
examination and the timely submission of applying for compensation from the
VA prior to separation, by his own actions the applicant materially and
directly contributed to any delay that may have resulted with respect to
his post-service medical benefits.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 July 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
21 July 1985.  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

_MJNT___  ___RR__  __JGH __  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.




                                  _____Marla J.N.Troup_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003423                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061026                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19820722                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 2                   |
|DISCHARGE REASON        |Completion of Required Service          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.0100.0000                           |
|2.                      |124.0000.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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