MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            5 May 1999        
	DOCKET NUMBER:   AC97-07777
				   AR1998012227

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger W. Able		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:  Disability retirement.  He states, in effect, that he fractured in back while on duty in 1972 but never received proper treatment.  He notes that the fracture “did show up later in an X-ray taken 01/74” but the oversight in treatment “allowed” him to “be released from the service without retirement benefits.  Although the applicant indicated that he was submitting a letter from a Major Liem dated 18 March 1997 to support his application, no such letter was attached to his application.  He did however, submit a VA service connected disability rating and documents associated with his claim for VA disability based on “compression fracture thoracic vertebrae five.” 

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 initially enlisted and entered active duty on 29 February 1968.  He was discharged three months later, on 11 June 1968, for failing to meet medical fitness standards at the time of enlistment due to a “knee condition.”

On 26 November 1969 he reenlisted but concealed his previous enlistment.  Ten months later, on 8 October 1970 he was discharged for concealing the previous enlistment and his disqualifying medical condition.

On 7 May 1971 the applicant once again enlisted in the Army, concealing both previous enlistments and his medical condition.  However, on 1 July 1971, while at the reception station at Fort Polk, Louisiana, the applicant requested, and was granted authority to remain in the military.  Documents associated with the retention action note the applicant was "medically re-evaluated and found to meet the Army’s Physical retention standards….”

In November 1971 the applicant was reassigned to Germany and in August 1972 was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty.  His performance evaluation reports, completed in 1972 and 1973 indicate he was an average to above average soldier.

He was promoted to pay grade E-4 in July 1973.  In August 1973 he received a score of 86 on his enlisted specialty (MOS) test, however, the report indicated that his average performance evaluation score of 48 was well below the average score of 82 for other individuals in his grade.

The applicant’s record indicates he received a local bar to reenlistment in February 1974.  When the bar was reviewed in April 1974 his commander recommended it not be lifted because the applicant “has the same problems now as when the Bar was initiated, namely, failure to pay debts, and continues to display erratic behavior.”

The applicant was honorably discharged on 2 May 1974 in pay grade E-4 at the conclusion of his enlistment contract.

At some point subsequent to his separation from active duty the applicant was granted a combined service connected disability rating of 60 for PTSD, Agent Orange exposure, and compression fracture of thoracic vertebrae.  However an undated letter from the VA indicates that in spite of the fact that the applicant’s combined rating was 60 percent “benefits have been authorized at the 100 percent rate because [the applicant is] unable to work due to [his] service connected conditions.”

A 1997 document from the VA, which apparently granted the applicant a 10 percent disability rating for “compression fracture” notes that on 26 March 1967 the applicant submitted a medical statement from a “Tripler Army Medical Center Physician, Dr. Liem.  In this statement Doctor Liem states that he reviewed a 1974 x-ray film of the veteran’s chest and further stated that he was able to see a compression fracture in the region of the thoracic vertebrae.”

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.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.
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 2 May 1974, the date the applicant was released from active duty and authenticated his separation documents.  The time for the applicant to file a request for correction of any error or injustice expired on 2 May 1977.

The application is dated 24 March 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

___jma__  ___js___  __rwa___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC97-07777/AR1998-12227	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990505	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2. 142.00		
3.		
4.		
5.		
6.