MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 July 1999      
	DOCKET NUMBER:   AR1999018968

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. James E. Anderholm		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, disability retirement.  He states, in effect, that he has had to have surgery for glaucoma and cataracts and believes his eye sight was so bad at the time of his military service that he should have been medically retired.

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 entered active duty on 21 September 1976 at the age of 22.  He successfully completed basic and advanced individual training prior to being assigned to Fort Hood, Texas in April 1977.

On 17 August 1977 he departed AWOL, was dropped from the rolls of the Army in September 1977 and was ultimately apprehended by civil authorities on 
30 March 1978.

When charges were preferred the applicant requested separation under the provisions of Army Regulation 635-200, chapter 10 which provided for an administrative separation in lieu of trial by court-martial.

He noted in a statement included with his request for separation that he had joined the Army to see what it was like and decided he didn’t like it.  When he went home on leave he discovered that his mother was alone and needed his help so he stayed with her and found a job.  He indicated that he just wanted to get out of the Army.

His separation physical examination notes that he did not have his glasses with him and “couldn’t see anything.”  There is no indication, however, in available records that he was ever given a profile for impaired vision or that it impacted on his ability to do his job.

He was placed on excess leave, at his request, on 13 April 1978 and on 13 July 1978 was separated under other than honorable conditions.  

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.
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 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.  There is no evidence, and the applicant has not provided any, which confirms that his heel condition prevented him from performing his duties and as such there would have been no basis for referral for disability processing.

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 13 July 1978, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 13 July 1981.

The application is dated 27 January 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

___inw__  ___jea__  ____mw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999018968	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990707	
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. 108.00		
2. 142.00		
3.		
4.		
5.		
6.