MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 August 1999                   
	DOCKET NUMBER:   AR1999017745

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John P. Infante		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, physical disability retirement.  

The applicant states that he was wounded in Vietnam and given a regular discharge.  He did not know that at that time he could have received physical disability retirement.  He received a 50 percent service connected disability rating by the VA after he was discharged; and recently that rating has been upgraded to 100 percent.

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:

The applicant entered the Army on 3 June 1960 and served on continuous active duty until his discharge in 1975.  He was trained as an infantryman, served in various locations throughout the world, to include Fort Hood, Texas, Germany (three tours), Vietnam (two tours), Fort Benning, Georgia, and Fort Knox, Kentucky.  He attained the rank of Staff Sergeant and has received numerous awards, to include the Army Commendation Medal with “V” device, two additional awards of that medal for meritorious achievement, the Expert Infantryman Badge, the Combat Infantryman Badge, and the Purple Heart, among his other awards.

Orders published by the 3d Field Hospital show that he was awarded the Purple Heart for wounds received in connection with military operations against a hostile force on 5 December 1965.  His DA Form 20 (Enlisted Qualification Record) shows he received a fragmentation wound to his left jaw and left shoulder, and sustained broken ribs, on that date.

Subsequent to his first tour in Vietnam, which ended after four months on          10 February 1966, the applicant served a two year tour of duty in Germany, a one year tour of duty again in Vietnam, and a three year tour of duty again in Germany.  His DA Form 20 shows that he was either an infantryman (squad leader and platoon sergeant), radio operator, or military police squad leader during those tours.  

On 22 November 1974 the applicant was notified that the he was barred from reenlistment under the DA qualitative management program (QMP).  On             5 February 1975 he extended his enlistment for 9 months under provisions of the option available to him under that program.  He was discharged at Fort Hood, Texas on 31 December 1975.  He had 15 years, 6 months, and 28 days of service.
On 10 February 1976 the applicant enlisted in the Army Reserve for six years.  On 27 January 1979 he was reassigned from his Reserve unit to the Army Reserve Control Group (Reinforcement) at St. Louis.  He was discharged from the Reserve on 9 February 1982. 

Army Regulation 601-280 sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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.

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 31 December 1975, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 31 December 1978.

The application is dated 6 July 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

___jhk__  __wtm___  ___jpi__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999017745	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990811	
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. 142.00		
2. 108.00		
3.		
4.		
5.		
6.