MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            3 March 1999      
	DOCKET NUMBER:   AR1999018682

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		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, disability retirement or separation.  He states, in effect, that while in basic training he was diagnosed with diabetes.  The applicant notes that although his sergeant told him, with his disciplinary problems he should have received a dishonorable discharge, because of his medical condition he was given an honorable discharge.  The applicant now wants his separation document to reflect the real reason that he was discharged; 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:

He enlisted and entered active duty on 1 July 1980 after nearly a year in the Delayed Entry Program.  While undergoing basic training at Fort Jackson, South Carolina the applicant was punished under Article 15 of the UCMJ for disobeying an order by his sergeant “to join the platoon formation.”

On 4 August 1980 the applicant’s commander initiated action to administratively separate the applicant from active duty under the Trainee Discharge Program.  The commander noted the applicant’s “poor attitude and lack of motivation” as the basis for his recommendation.  The proposed separation action noted that his service would be characterized as honorable but that because he did not complete the “requisite active duty time” he may not be eligible for VA and other benefits normally associated with completion of honorable active duty.

The applicant acknowledged receipt of the proposed separation and indicated that he did not desire “to have a separation medical examination” if the proposed separation was approved.

On 14 August 1980 the applicant was discharged and issued an honorable discharge certificate under the provisions of Army Regulation 635-200, Chapter 5.  At the time of his separation he had completed 1 month and 14 days of active Federal service.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 

180 days of training that they lacked the necessary motivation discipline ability or aptitude to become effective soldiers.  This program, known as the Trainee Discharge Program, mandated the award of an honorable discharge.

The applicant’s official military personnel file contains no service medical records.

Army Regulation 635-40, which prescribes the policies and procedures for the separation and retirement of soldiers based on disability, states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury, rather, it is provided to soldiers whose service is interrupted and they can not longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  There is no evidence the applicant had any medical condition which required separation via medical channels and his continued performance of duty until his administrative separation from active duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

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 14 August 1980, the date he was discharged and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 14 August 1983.

The application is dated 9 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

____rvo_  ___ew___  ___gcm__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018682	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990303	
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         1.108.00		
2.142.00		
3.		
4.		
5.		
6.