MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 August 1999    
	DOCKET NUMBER:   AR1999018393

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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.

She states that veterans with a disability rating of 30 percent or more should receive a physical disability retirement from the service.  At the time of her discharge she did not have that option.  She was informed prior to her discharge that she would receive a 50 percent disability rating because of her various ailments.  She states that she has talked with other female veterans, all of whom have been medically retired, and does not know why she did not receive that option. 

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 on 5 October 1979 and remained on continuous active duty until her discharge in 1992.  She was processed for fraudulent enlistment in 1980 for failure to reveal that she had a dependent child upon her enlistment.  She requested retention in the Army, and with the strong support of personnel in her chain of command, her request was approved in May 1981. 

The applicant’s record over her 12 plus years of service show that she completed the primary leadership development course in 1982 and the basic NCO course (BNCOC) in 1989.  Her evaluation reports from 1983 until her discharge have generally been outstanding.  Those reports showed that she passed all the physical training tests from May 1983 until June 1991.  The last two evaluation reports show an exception from the physical training tests because of assignment in Southwest Asia.

The applicant was discharged from the Army on 29 September 1992 and transferred to a Reserve unit in Jacksonville, Florida.  Her DD Form 214 shows that she received three awards of the Army Commendation Medal, two awards of the Army Achievement Medal, four awards of the Good Conduct Medal, and the Southwest Asia Service Medal with one bronze service star, among her other awards.  She had 12 years, 11 months, and 25 days of service.  The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 16-8, under the FY92 enlisted voluntary early transition program.  She received a special separation benefit (SSB) payment of $34,471.34.

She enlisted in the Army Reserve for 6 years on 30 September 1992.

In a 7 July 1993 letter the VA informed the applicant that service connection would be established for residuals, total abdominal hysterectomy with bilateral salpingo-oophorectomy, appendectomy, dilation and curettage, laparoscopy, secondary to pelvic inflammatory disease, evaluated at the maximum of 50 percent with entitlement to special monthly compensation on account of loss of a creative organ. 

A 2 August 1994 order shows that the applicant was voluntarily reassigned from the Army Reserve Control Group (Reinforcement) at St. Louis to a Reserve unit in Jacksonville, Florida, effective 26 July 1994.  On 26 January 1995 she voluntarily transferred to the Reinforcement Control Group.  She was discharged from the Army Reserve on 3 October 1995.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of that regulation concerns early separation due to reduction in force, strength limitations, or budgetary constraints, and states, in effect, that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation.  The Commander, Total Army Personnel Command (PERSCOM) will implement this program by issuing separation instructions pertaining to a specific class or category of soldiers.  Early separation under this paragraph is for the convenience of the government.  Personnel separated under this paragraph will be discharged or released from active duty, as appropriate.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary  release from active duty for specific categories of soldiers with monetary incentives authorized.  One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service.  Soldiers approved for SSB must enter into a written agreement to serve in the Ready Reserve for a period of not less than three years.  

Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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 29 September 1992, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 29 September 1995.

The application is dated 13 May 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

___rvo__  ___jma__  ____mw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018393	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
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.