MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 July 1999 
	DOCKET NUMBER:   AR1999016307

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 retirement or separation.  She states that she “was injured while exiting the military” but never given “a medical to exit out.”  She notes, in a self-authored statement to the VA, that at the time she entered active duty she was in the best of health and that while undergoing training she was diagnosed with “chronic tendernitis” and ultimately when she was told by her drill sergeant that she “was not going to get out with a medical discharge” she made a statement that she “would rather be in heaven” then remain in the military.  She indicates that as a result of that statement she was referred to a psychologist who “signed a paper which stated that [she] couldn’t adjust to military life.”  She stated that despite her medical problems her first sergeant “who had [her] file” told her that her “record showed that [she] had excellent training skills….”  In addition to her self-authored statement, she submits a copy of her VA disability rating indicating she was granted a 10 percent disability rating as of 1 June 1994 for “condition of the skeletal system.”

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:

She entered active duty on 24 February 1994 at the age of 19 with 12 years of formal education and a GT score of 107.

On 28 March 1994, barely 30 days after arriving for basic training at Fort McClellan, Alabama, a member of the applicant’s chain of command informed the applicant that since her arrival she had “displayed an inability to cope with the stress of military life.”  He noted that rather than accepting responsibility for her actions she felt that everyone was out to get her.  He indicated the applicant had refused any “new start action” and that she stated that “if [she] did not get out of here [she] would take a drug overdose.”  

A 28 March 1994 mental status evaluation noted the applicant was fully alert and oriented and that her thought content was normal and her memory good.  The evaluating official indicated that the applicant “appears to have a difficult time dealing with other” and that “according to her, she has had a variety of experiences as a street-wise individual that makes it difficult for her to socialize with and trust others.”  He noted that the applicant “was treated in the past by a professional mental health worker” and that “her threats to overdose are consistent with her preoccupation to leave the Army.”  The psychologist recommended her commander initiate administrative separation action and noted that there “is no mental disease or defect that warrants disposition through medical channels.”
On 30 March 1994 the applicant’s unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 11 (Entry Level Status Performance and Conduct).  The applicant acknowledged receipt of the proposed separation and waived her attendant rights.

The recommendation was approved on 31 March 1994 and on 5 April 1994 the applicant was discharged and her service was “uncharacterized.”  At the time of her separation she had completed 1 month and 12 days of active Federal service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status who cannot or will not adapt socially or emotionally to military life or who have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

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 whose service is interrupted and they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider 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 establishes 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.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. There is no evidence, nor has the applicant provided any, which confirms he had a medical condition, which warranted referral for disability processing at the time of his administrative separation.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 April 1994, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 5 April 1997.

The application is dated 1 January 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

__fne___  __lem___  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999016307	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	( DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.142.00		
3.		
4.		
5.		
6.