RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 April 2007
      DOCKET NUMBER:  AR20060013250


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Scott W. Faught               |     |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 records be corrected to
show he was separated for physical disability.

2.  The applicant states he requested his service and medical records.  He
received his service records but not his medical records.  Those records
are vital to his Department of Veterans Affairs appeal.

3.  The applicant also states that his active duty orders and a letter,
dated         21 February 1968, are in direct conflict with each other.
This is the first time he has seen anything about an erroneous enlistment.
He injured himself during basic training and never had any history of back
problems prior to his enlistment. If he signed anything contrary to that,
it was without his knowledge of what he was signing.

4.  The applicant provides a 5 January 2006 letter from the Disabled
American Veterans, National Service Office, requesting his service medical
records and his 201 file; a letter, dated 21 February 1968, subject:
Separation from U. S. Army; his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge); and his active duty orders, dated
15 November 1967.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 March 1968.  The application submitted in this case is
dated       6 September 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 enlisted in the U. S. Army Reserve on 15 November 1967.
Orders dated 15 November 1967 ordered him to active duty with a will
proceed date of 15 January 1968.  The orders indicated that he was examined
and   found physically qualified for enlistment.  He enlisted in the
Regular Army on     15 January 1968.

4.  The applicant’s separation packet is not available.  On 21 February
1968, he signed a letter, subject:  Separation from U. S. Army, requesting
separation by reason of erroneous enlistment under the provisions of
paragraph 5-9 of Army Regulation 635-200.  The letter indicated he was
notified that based on preliminary findings he was not medically qualified
under procurement medical fitness standards when accepted for enlistment.
He acknowledged that he was advised he was not disqualified for retention,
but he did not desire to complete the period of service for which he
enlisted.  He certified that it was fully explained to him that as a result
of that application [for separation] and provided that the approved
findings of a medical board corroborated the preliminary findings
concerning his unfitness, he could be separated for physical disability
without disability retirement or disability severance pay.

5.  On 25 March 1968, the applicant was honorably discharged due to
physical disability under the provisions of Army Regulation 635-200,
chapter 5, with a separation program number (SPN) of 375 (discharge because
of not meeting medical fitness standards at time of enlistment or
induction).  He had completed 2 months and 11 days of creditable active
service.

6.  By letter dated 7 August 2006, the National Personnel Records Center
provided the applicant his separation documents and personnel records.  His
medical records were not available.  The letter stated there was a
possibility that prior to the 1973 fire his military medical records could
have been sent to the Department of Veterans Affairs.

7.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 5-9 at the time set the policy
and prescribed procedures for discharging members who were not medically
qualified under procurement medical fitness standards when accepted for
induction or initial enlistment.  Such personnel would be discharged when a
medical board, regardless of the date completed, established that a medical
condition was identified by appropriate military medical authority within 4
months of the member’s initial entrance on active duty which (1) would have
permanently disqualified him for entry into the military service had it
been detected at that time; and (2) did not disqualify him for retention in
the military service under the provisions of chapter 3, Army Regulation 40-
501.  As an exception, an individual who elected to complete the period of
service for which inducted or enlisted would not be discharged under this
paragraph.  Such member would be required to sign a statement electing to
complete his period of service, notwithstanding his eligibility for
discharge under this paragraph.

8.  A fire at the National Personnel Records Center in 1973 destroyed
approximately 18 million service members’ records.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that this “is the first time he has seen
anything about an erroneous enlistment” and that “If he signed anything
contrary to that, it was without his knowledge of what he was signing.”

2.  However, the letter, subject:  Separation from U. S. Army, that he
signed on 21 February was very clear.  He was requesting separation by
reason of erroneous enlistment.  The letter indicated he was notified that
based on preliminary findings he was not medically qualified under
procurement medical fitness standards when accepted for enlistment.  He
certified that it was fully explained to him that provided the approved
findings of a medical board corroborated the preliminary findings
concerning his unfitness, he could be separated for physical disability
without disability retirement or disability severance pay.

3.  It is acknowledged the applicant’s active duty orders indicated he had
been examined and found physically qualified for enlistment.  However,
enlistment physical examinations focus on the basics.  For example, when x-
rays are taken they are usually only chest x-rays to rule out tuberculosis,
not to identify any possible skeletal abnormalities.

4.  The applicant stated he injured himself during basic training and never
had any history of back problems.  If that was so, it is likely a more
thorough examination of the applicant taken after his injury revealed an
abnormality that was asymptomatic during his civilian life but manifested
itself during the rigors of basic training.  The applicant’s separation
packet is not available; however, in the absence of evidence to the
contrary it must be presumed his administrative separation was accomplished
in compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

5.  It is acknowledged the applicant would very much like to have his
military medical records.  Regrettably, however, they are not available and
may have been lost or destroyed in the 1973 fire at the National Personnel
Records Center.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1968; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         24 March 1971.  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

__lds___  __jcr___  __swf___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013250                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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