MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 July 1999      
	DOCKET NUMBER:   AR1999018681

	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. Charles H. Loundermon		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Curtis L. Greenway		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 or separation.

He states that after the doctors recommended that he should be discharged, his Captain informed him that he would not be allowed to leave; however, he was administratively separated, but he left the Army only because of his medical condition.  

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 served in the Army National Guard for six months.  He enlisted in the Army for three years on 18 February 1993, and in March was assigned to an engineer brigade in Germany.  He was promoted to pay grade E-3 on                   3 October 1993.  

On 23 June 1993 the Defense Finance and Accounting Service (DFAS) at Indianapolis notified the applicant’s commanding officer that the applicant’s pay was being garnished because of failure of the applicant to provide child support.

The applicant was counseled on 7 January 1994 for disrespect to an NCO and for his argumentative behavior.  He was counseled on 15 February 1994 for being delinquent in making payments relative to a rental agreement.  He was counseled on two occasions in April 1994 for failing the physical fitness test.

On 19 April 1994 the applicant’s commanding officer recommended that the applicant be barred from reenlistment.  The applicant stated that he had been counseled and advised of the basis of the action and that he did not desire to submit a statement in his own behalf.  The bar to reenlistment was approved on 24 April 1994.  The applicant stated that he would not appeal the bar.

On 10 May 1994 the applicant requested that he be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 16-5.  He stated that if his request was approved, it would be for his own convenience, and that he understood that recoupment of unearned portions of enlistment bonus/selective reenlistment bonus was required; and that once separated he would not later be permitted to reenlist.

On 6 June 1994 a Judge Advocate General officer stated that the discharge of the applicant under the provisions of paragraph 16-5 (inability to overcome a bar to reenlistment) was legally sufficient.
On 6 June 1994 the separation authority approved the applicant’s request and stated that he would be issued an Honorable Discharge Certificate.  The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 16-5b, on 21 June 1994 at Fort Jackson, South Carolina.  He had       1 year, 4 months, and 4 days of service. 

The applicant’s military records contain no medical documentation.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.   Paragraph 16-5 states in pertinent part that soldiers who perceive that they will be unable to overcome a locally imposed bar to reenlistment may request immediate separation and be voluntarily separated before their effective date of separation (ETS).

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 635-40, paragraph 3-2b, 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 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 21 June 1994, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 21 June 1997.

The application is dated 28 June 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

__chl___  __slp___  __clg______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018681	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990729	
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.