MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        4 November 1998      
	DOCKET NUMBER:   AC98-11155

	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:

	Mr. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		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 the VA granted service connection for his illness at his discharge, to include chronic fatigue syndrome, which began in the Spring of 1980.  Per his discharge physical, he should have been considered for a medical discharge in September 1982.  Because of his health he was unable to complete educational requirements in the Reserves on time, resulting in pass over [for promotion] and discharge.  He requests review since he finished the AOC late.

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:

The applicant was initially appointed a second lieutenant in the Army Reserve as a field artillery officer on 6 June 1971.   On 28 September 1973 he was tendered an appointment as a Regular Army officer and ordered to active duty to attend the Field Artillery Basic Course at Fort Sill, Oklahoma on 14 October 1973.   He was promoted to first lieutenant on 9 June 1974.  

The applicant accepted an appointment in the Judge Advocate General Corps and achieved the rank of Captain, accepting an appointment in the Regular Army on 24 June 1980.  

On 21 May 1982 the applicant tendered his unqualified resignation from the Army, to be effective 30 September 1982.  He stated that he desired to resign because his service obligation expired in August 1982.  The applicant stated that he desired an appointment in the Army Reserve.  His request was approved on 17 June 1982.

A report of medical examination dated 15 September 1982 indicates that the applicant was physically qualified for separation with a physical profile series 
of 1 1 1 2 1 1.  The examining physician stated that the applicant had no obvious physical abnormalities, stated that he had high frequency loss, had myopia/astignation (corrected), and noted the numerous medical complaints the applicant made on his report of medical history.  In that report the applicant stated that his health was tolerable.  He indicated by a check mark that he had had or had now 36 different ailments, illnesses, or injuries, that there were only 
9 ailments, etc., that he had never had, and he was unsure whether or not he had had the remaining 16 ailments on the check list. 
The applicant was discharged on 30 September 1982.  He had 9 years and 3 months of active service, and 2 years, 3 months, and 22 days of inactive service.  
He was appointed a Reserve Captain in the Judge Advocate General Corps concurrent with his discharge and transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.

On 26 September 1985 the applicant completed the Judge Advocate Officer Advanced Correspondence Course.

On 23 October 1985 the Army Reserve Personnel Center published orders transferring the applicant to the Retired Reserve effective 21 August 1985 due to his non-selection for promotion.

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 635-40, paragraph 2-2b, 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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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 30 September 1982, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 30 September 1985.

The application is dated 30 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

_JEV____  __LLS__  __TNK___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director