MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         20 February 1999                     
	DOCKET NUMBER:   AC98-12341
				   AR1999017764

	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. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Geraets		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, compensation because she was erroneously released from active duty. 

She states that she has had upper and lower respiratory tests and X-rays and found to be in perfect condition, regarding respiratory or lung complications.  She states that she would like her medical records to show that there was nothing wrong with her.  She states that her military career was ruined and she has not been able to explain her discharge to employers.  She believes that she is owed pay for two years (the term of her enlistment contract), because she was misled and lied to.

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 enlisted in the Army for 2 years and 20 weeks on 8 August 1989 for training as a medical specialist, MOS (military occupational specialty) 91A.  A 28 July 1989 report of medical examination indicates that she was medically qualified for enlistment with a physical profile of 1 1 1 1 1 1.  

She completed basic training at Fort Dix, New Jersey, and on 13 October 1989 she was assigned to Fort Sam Houston, Texas for training as a medical specialist.  She was disqualified from that training in December 1989 because of academic failure, and on 26 January 1990 was assigned to Fort Jackson, South Carolina for training as an administrative specialist, MOS 71L.

A 30 January 1990 medical report indicates that the applicant was seen because of exercise induced wheezing and shortness of breath, which she [stated] had all her life.  A preliminary diagnosis of asthma was entered in this report, and she was referred to a pulmonary function laboratory. 

A 7 February 1990 report of medical examination indicates that the applicant had asthma.  In the report of medical history she furnished for the examination, the applicant stated that she had, or had had, asthma, shortness of breath, pain or pressure in her chest, dizziness or fainting spells, heart trouble, and low blood pressure, among other ailments.  She also indicated that she had been a patient in a hospital for asthma attacks.

An Entrance Physical Standards Board (EPSBD) proceedings of                          8 February 1990 indicates that the applicant was seen for exercise induced shortness of breath, and that the applicant stated she could not perform physical training because of shortness of breath.  She was diagnosed as having asthma, with a recommendation that she be separated for failure to meet medical procurement standards.  Her condition was determined to have existed prior to her service (EPTS), and was not service aggravated.  She met the medical standards for retention in the Army.  On 9 February 1990 the applicant concurred with the findings and requested discharge without delay.

She was released from active duty on 23 February 1990, under the provisions of Army Regulation 635-200, paragraph 5-11, because she did not meet procurement medical fitness standards.  She had 6 months and 16 days of service.  

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the early separation of soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entry on active duty, which would have permanently or temporarily disqualified her for entry into the military service had it been detected at that time, and which does not disqualify her for retention in the military service under the provisions of Army Regulation 40-501, chapter 3.  The character of service for a soldier separated under this paragraph will normally be honorable, or an uncharacterized description of service if in entry level status. 

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 23 February 1990, the date she was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 23 February 1993.

The application is dated 21 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

__pb____  __eja___  __gfg___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-12341/AR1999017764	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990210	
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. 128.00		
2. 142.00		
3.		
4.		
5.		
6.