MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 March 1999     
	DOCKET NUMBER:   AR1999018715

	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. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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:  Physical disability retirement or separation.  

The applicant states that he was discharged during basic training because of a nervous condition and was sent to a VA hospital for treatment, and has been treated since his discharge.

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 three years on 3 November 1976 and was assigned to Fort Jackson, South Carolina for training.  

On 23 November 1976 a medical board diagnosed the applicant’s condition as schizophrenia, paranoid type, chronic, slightly improved, as manifested by suspiciousness, inappropriate affect, elevated mood, paranoid ideations, delusions, looseness of associations, circumstantiality, concrete proverbs and autistic.  Stress:  Slight, routine military duty.  Predisposition:  Severe, extensive history of psychiatric hospitalizations in the past.  Impairment for further military service:  Severe.  Impairment for further social and industrial adaptability:  Definite.  His condition was determined to have existed prior to his service (EPTS), not incident to his service, nor aggravated by active duty.  

On 1 December 1976 the applicant was transferred to a VA hospital at Ann Arbor, Michigan, for the purpose of separation processing.  He was discharged on that same date, under the provisions of Army Regulation 635-40, chapter 5, because of a physical disability that existed prior to his service.  He had 29 days of service.

Army Regulation 635-40, paragraph 3-3, provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  Examples of these conditions include hereditary conditions.

Army Regulation 635-40 provides guidance and policies for physical evaluation for retention, retirement and separation.  Chapter 5 provides for separation of
personnel due to conditions that existed prior to enlistment, were not aggravated by the period of service and for which the individual waived evaluation by a PEB.

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 1 December 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 December 1979.

The application is dated 22 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

__cwb___  ___eb___  __rjw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018715	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990304	
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. 142.00		
2. 108.00		
3.		
4.		
5.		
6.