MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         4 November 1998      
	DOCKET NUMBER:   AC98-11194

	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 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 (advisory opinion including 
	, if any)

APPLICANT REQUESTS:  In effect, medical retirement or separation.  He states, in effect, that he should have been medically separated from the service because he still suffers from attention deficit disorder and schizophrenic disorders.

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 19 September 1985 with 12 years of formal education and a GT score of 98.  His enlistment physical examination notes that he was medicated for attention deficit disorder between the ages of 6 and 10 but was found medically qualified for enlistment.

He successfully completed basic and advanced individual training and was assigned to Fort Campbell, Kentucky in March 1986.  Between May 1986 and November 1986 the applicant was formally counseled on several occasions and was denied advancement to pay grade E-3 in October 1986 because his duty performance did not warrant advancement.

On 23 December 1986 the applicant’s unit commander initiated a local bar to reenlistment noting the numerous counseling statements as the basis for the action.  On 30 March 1987 the applicant requested voluntary separation from the service under the provisions of Chapter 16, Army Regulation 635-200 which provided for the voluntary separation of soldiers who believed they would be unable to overcome their locally imposed bar to reenlistment.

The applicant’s request was approved and on 10 April 1987 he was honorably discharged.  Although his separation physical examination is not part of his military personnel file existing service medical records do not indicate any treatment for behavior, personality or psychotic disorders while in the service.

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.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers who service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence established that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  Additionally, medical conditions which existed prior to an individuals entry on active duty which were not aggravated while on active duty are not a basis for compensable medical separation or retirement.

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 10 April 1987, the date he was released 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 
10 April 1990.

The application is dated 27 October 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