MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        9 December 1998                    
	DOCKET NUMBER:   AC98-12146
	                                    AR1998013065

	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:

	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:  That his military records be corrected to reflect that he was medically retired from active duty.  He states that his separation document indicated he was separated for “physical disability” which precluded him from continuing on active duty.

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 30 January 1968 and was discharged for the purpose of immediate reenlistment on 31 October 1968.  

In February 1971 the applicant was diagnosed with right optic atrophy and referred for disability processing.  A physical evaluation board, which convened on 14 May 1971, concluded the applicant’s eye condition was unfitting and recommended a disability rating of 20 percent and that he be separated from the service with severance pay.  The applicant concurred with the findings and recommendation of the physical evaluation board and on 15 July 1971 was released from active duty with severance pay in the grade of E-5.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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 15 July 1971, 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 
15 July 1974.

The application is dated 24 September 1998 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