MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 May 1999       
	DOCKET NUMBER:   AR1999017840

	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. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry, Jr.		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, that his discharge under other than honorable conditions be changed to a discharge because of physical disability.

He states that his enlistment medical records shows that he was not qualified for enlistment because of deafness in his right ear.  He was unaware of this medical condition, entered the Army with that condition; and consequently, could not perform his duties.  

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:

A 20 May 1980 report of medical examination indicates that the applicant was not qualified for enlistment in the Army; and that he should lose three pounds and return [for another examination] in two weeks.  His disqualifying defects were listed as his weight (221 pounds) and his blood pressure.  His physical profile serial was 3 1 1 2 1 1.  On that same form is a later 11 June 1980 date, with a typed notation that showed there was no disqualifying defects or communicable diseases.  The applicant’s height was indicate at 70” and his weight as             218 pounds. 

The applicant enlisted in the Army for three years on 11 June 1980 and was assigned to Fort Bliss, Texas for training, and in two weeks, on 1 July 1980, he went AWOL.  He surrendered to military authorities on 11 December 1980.   

On 16 December 1980 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated that he understood that he could request discharge because of the charges preferred against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that he acknowledged that he was guilty of the charge, and that he had no desire for further rehabilitation, and had no desire to perform further military service.  He stated that he understood the nature and consequences of the under other than honorable discharge that he might receive.  He declined to submit statements in his own behalf.  

The applicant was discharged at Fort Sill, Oklahoma on 27 January 1981.  He had 2 months and 4 days of service and 163 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  However, if the
officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence,
the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial
authority who made the decision.

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 27 January 1981, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 January 1984.

The application is dated 25 May 1997 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

___emw__  __hof___  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999017840	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
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.