MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        14 October 1998       
	DOCKET NUMBER:   AC98-06504

	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. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		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 separation or retirement.  He states, in effect, that following his injury his unit commander told him “the problem was psychological and [his] continued complaints would result in discharge.”  He notes that he is currently receiving a 20 percent disability rating from the VA.

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 was a member of the Army Reserve when he enlisted and entered active duty on 25 January 1989.  As a result of his training in the Reserves he was assigned to Germany as a supply specialist.  In July 1989 he was advanced to pay grade E-3 and on 30 May 1996 he passed an Army Physical Fitness Test.

In June 1990 he was punished under Article 15 of the UCMJ following an altercation with military police.  His punishment included a suspended reduction to pay grade E-2.  In July 1990 the suspended reduction was vacated after he failed to go to his appointed place of duty.  In October 1990 he was punished again under Article 15 of the UCMJ for an altercation with an NCO.  On 
18 October 1990 he received a local bar to reenlistment and on 7 November 1990 his commander initiated action to administratively separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12b for patterns of misconduct.  The commander noted the applicant’s substandard performance, his off duty misconduct and his poor attitude towards superiors as the basis for the separation.

A mental status evaluation, conducted on 7 November 1990, found the applicant alert, fully oriented and mentally responsible.  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.

The separation authority approved the recommendation and on 23 November 1990 the applicant was discharged under honorable conditions and reduced to pay grade E-1.  At the time of his release he had nearly 2 years of active Federal service and slightly more than 2 years of inactive service.

Subsequent to his separation the VA determined that a low back injury with disk herniation and scalp condition was service connected but warranted a 0 percent disability rating.  In 1995 the VA granted the applicant a 20 percent disability rating for his back condition.

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.  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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Board’s medical advisor.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 November 1990, the date the applicant 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 23 November 1993.

The application is dated 4 September 1996 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

___JNS__  __EMW  __RWG___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director