RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060012171 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 that the reason for his separation from active duty be changed to medical.

2.  The applicant states, in effect, that at the time of his separation, and due to receiving small arms fire to his chest, arm and leg, he had lost part of his right lung, had lost movement in his right arm and leg, and his heart had shifted to the right side of his body.  He further states that he had been Regular Army and should have been medically retired. 

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 July 1971, the date of his release from active duty.  The application submitted in this case is dated 17 August 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.  On 31 July 1969, the applicant enlisted in the Regular Army for 2 years.  He completed his initial training and was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

4.  On 20 January 1970, the applicant was assigned for duty as a rifleman with the 2nd Battalion, 5th Cavalry Regiment, in the Republic of Vietnam.   

5.  On 3 March 1970, the applicant was wounded in action.  Item 40 (Wounds) of his Enlisted Qualification Record (DA Form 20) shows that he received gun shot wounds to his right lung and upper right leg.  He was hospitalized and returned to the United States.

6.  On 6 May 1970, the applicant was reassigned from the United States Army Medical Activity, Fort Gordon, Georgia, to the 519th Military Police Battalion, Fort Meade, Maryland.  

7.  During the period from 25 May to 31 August 1970, he performed duty as a loader with the 6th Armored Cavalry Regiment.  His conduct and efficiency were noted as excellent. 

8.  During the period from 1 September 1970 to 30 July 1971, the applicant performed duty as a military policeman.  His conduct and efficiency were again noted as excellent.

9.  On 30 July 1971, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Annual Training).  He had completed 2 years of creditable active duty and attained the rank of specialist four, pay grade E-4.

10.  Standard Form 88, Report of Medical Examination, dated 21 July 1971, shows that the applicant's gun shot wounds had healed.  It also noted that he suffered some numbness along the right chest wall.  The examining physician did not identify any physical disabilities that would have disqualified him for separation.

11.  On 1 July 1975, the applicant was removed from the Standby Reserve and honorably discharged.

12.  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.

13.  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.

14.  Army Regulation 635-40, paragraph 3-2b(2), as amended, 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 available evidence does not indicate any medical condition incurred while the applicant was entitled to receive basic pay that was so severe as to render him medically unfit for retention on active duty.   The applicant's records show that he performed his duties in an excellent manner for more than a year after his release from the hospital.

2.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 July 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 July 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

__RMN__  __EEM__  __WFC__  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.




__    William F. Crain____
          CHAIRPERSON




INDEX

CASE ID
AR20060012171
SUFFIX

RECON
 
DATE BOARDED
20070308 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.