MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            18 AUGUST 1999                    
	DOCKET NUMBER:   AR1998013622

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Edward Wiliamson		Member	
	Mr. Sherri V. Ward		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 her records be corrected to show entitlement to payment for unspecified medical bills; promotion to pay grade E-7; and her time in service.  She provides a copy of a Statement of Military Pay Account; a FAX concerning her medical situation; a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 February 1992; and, other finance and medical documents.

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:

After serving for 2 years, 3 months and 9 days active and 12 years, 7 months and 5 days inactive service as a member of the Army Reserve and the National Guard, she was ordered to active duty on 11 August 1991, in support of Desert Shield/Desert Storm.  She held military occupational specialty (MOS) 76Y (Unit Supply Specialist) and pay grade E-5.  Her ultimate assignment was the 442D Personnel Service Company, Dhahran, Saudi Arabia, APO NY 09616.

On 11 August 1991, she reported to Fort Dix, New Jersey to process for overseas movement.  The records show she did not comply with her orders assigning her to Dhahran.  She was assigned the Medical Activity at Fort Dix, in MOS 76Y.

On 5 February 1992, the applicant was honorably separated under Army Regulation 635-200, based on the expiration of her term of service.  Her Report of Separation indicates she had 5 months and 25 days of creditable service.

On 27 February 1992, the First Sergeant, Medical Company, Walson Army Community Hospital, Fort Dix authenticated a DA Form 2173 (Statement of Medial Examination and Duty Status) showing in line of duty for a left breast mass which was discovered in July 1991, in Saudi Arabia (sic).  (Analyst note: There is no evidence that the applicant ever served in Saudi Arabia and was not ordered to active duty until August 1991.) 

There is no evidence in the available records nor has the applicant presented any to substantiate her request for repayment of medical bills.

There is no evidence in the available records to show that she was recommended for or orders promoting her to pay grade E-7.  (Analyst note: Since the applicant never exceeded pay grade E-5, she would not be eligible for promotion to pay grade E-7.)
Army Regulation 635-5 (Personnel Separation Documents) indicates, in pertinent part, provided that a DD Form 214 will only be issued for periods of active service.

Title 38, United States Code, sections 310 and 331, permits the Department of Veterans Affairs (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 or 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 5 February 1992, the date she was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 5 February 1995.

The application is dated 20 February 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

rvo_____  ew______ svw______ CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998013622	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
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         1.131	Promotion to E-7	
2.110	PD Separation	
3.128	Payment for unspecified medial items	
4.		
5.		
6.