MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            18 February 1999 
	DOCKET NUMBER:   AR1998013403

	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. Thomas N. Kuhn		Chairperson	
	Mr. John P. Infante		Member	
	Mr. James P. Steuve		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, disability retirement or separation.  He notes that he was discharged without appropriate medical attention and now needs “medical help” for his feet and assistance with medications.  He states he can not work and has medical insurance to support his condition.  In support of his request he submits a copy a 1981 permanent medical profile.

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 active duty on 10 March 1979 and successfully completed basic and advanced individual training.  On 3 August 1979 he was convicted by summary court-martial of two counts of AWOL totaling approximately 20 days.  On 
22 August 1979 he was punished under Article 15 of the UCMJ for an additional day of AWOL and in December 1980 he was punished again under Article 15 for failing to go to his appointed place of duty.

In May 1981 the applicant was issued a permanent physical profile prohibiting him from running more than a ½ mile per day, marching over 2 miles per day, or standing over 30 minutes at any given time.  The profile cited “heel pain” as the basis for the profile.

In June 1981 charges were preferred against the applicant for two counts of failing to go to his appointed place of duty, disobeying a lawful order and disrespect.  As a result of the charges, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged he understood the nature and consequences of the under other than honorable conditions discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.

Although the applicant’s records do not contain a separation physical examination, a mental health evaluation, conducted on 6 June 1981, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal.  It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

The separation authority approved the request and directed that the applicant be discharged under other than honorable conditions.  On 26 June 1981 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.  He had 2 years, 6 months and 26 days creditable service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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.  There is no evidence, and the applicant has not provided any, which confirms that his heel condition prevented him from performing his duties and as such there would have been no basis for referral for disability processing.

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 26 June 1981, the date was discharged from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on
26 June 1984.

The application is dated 9 September 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

_tnk____  _jpi____  __jps______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013403	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990218	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.108.00		
2.142.00		
3.		
4.		
5.		
6.