MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         9 December 1998                     
	DOCKET NUMBER:   AC97-06026
	                                    AR1998012236

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	if any)

APPLICANT REQUESTS:  In effect, physical disability retirement or separation.  

He states that he returned to the United States at Fort Lewis, Washington from Vietnam, for outprocessing.  An officer informed him that he would have to remain at Fort Lewis for two weeks for medical processing.  He had no desire to stay there for two weeks.  The officer then told him to go to the VA for a disability rating for the wounds he received in combat.  

He states that that officer should have informed him of the benefits inherent in a physical disability separation.  He wants a physical disability rating by the Army in order that he can fly on military standby flights.  He states that he is receiving a 100 percent disability rating from the VA.  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered the Army on 18 September 1968, completed training as an infantryman and in March 1969 was assigned to a cavalry unit of the 198th Infantry Brigade in Vietnam.  

On 21 June 1969 the applicant was slightly wounded to both legs and his right arm by fragments from a booby trap.  On 11 September 1969 he was slightly wounded again, receiving fragmentation wounds to his left arm, chest, and left side of his face. 

The applicant was promoted to pay grade E-4 on 5 November 1969.  He returned to the United States and was released from active duty at Fort Lewis on 
23 April 1970.   His DD Form 214 shows that he received the Combat Infantryman Badge, the Vietnam Service Medal, and two awards of the Purple Heart, among others.  He had 1 year, 7 months, and 6 days of service.  

Army Regulation 40-501 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.  Performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 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.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 April 1970, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 23 April 1973.

The application is dated 27 January 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___jh___  ___fne__  ___tbr__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.