MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           11 August 1999            
	DOCKET NUMBER:   AR1999019543

	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. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John P. Infante		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 discharge.  

He states that he injured both knees while in the Army and that he has a           60 percent hearing loss.  He was offered a choice to volunteer to leave the Army or be involuntarily discharged.  So he opted to leave with 14 years of service.  He was unfairly treated.  He served the Army well and is proud of his accomplishments.  During his Army service he had no problems until he attended the advanced NCO course (ANCOC), after which he was barred from reenlisting. After his discharge, he tried to join the Reserve, but he was disqualified because of his physical condition.  He is asking for justice, considering his years of service with no compensation.  He had knee injuries prior to leaving the Army and that was one of the reasons he dropped out of ANCOC.  He could not keep up with other soldiers.  He cannot hold a job now because of his injuries, is disabled, unemployed, with a family to support.  

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 7 June 1978, completed basic armor training and in October was assigned to an armored battalion in Germany.  He remained on continuous active duty until his discharge in 1992.  He completed BNCOC at Fort Eustis, Virginia in 1985, was promoted to Staff Sergeant in 1987, and has been awarded the Army Commendation Medal, the Southwest Asia Service Medal with 3 bronze service stars, the Kuwait Liberation Medal, two awards of the Army Achievement Medal, and three awards of the Good Conduct Medal, among others.

A 5 May 1992 memorandum shows that the applicant was released early from ANCOC at Fort Knox, Kentucky for academic failure.  He failed a test on three separate attempts, each followed by review, retraining, and retesting.

On 5 June 1992 the applicant’s commanding officer recommended that he be barred from reenlisting because he failed ANCOC.  That recommendation was approved and the applicant counseled.  He stated that he would not appeal the bar to reenlistment.  On 13 October 1992 his commanding officer notified the applicant that the bar to reenlistment had been reviewed and he determined that the bar would remain in effect.  He informed the applicant that he was eligible to request an immediate discharge based on his perceived inability to overcome the bar to reenlistment. 

On 18 October 1992 the applicant requested early separation under the provisions of Army Regulation 635-200, paragraph 16-5b, in that he perceived that he would be unable to overcome a bar to reenlistment.  He stated that he understood that his request for separation before normal ETS, if approved, was for his own convenience.  On 22 October 1992 the separation authority approved his request.  

The applicant was discharged at Fort Jackson, South Carolina, on                        6 November 1992.  He had 14 years and 5 months of service. 

On 17 July 1997 the VA awarded the applicant a 20 percent service connected disability rating for arthritis due to trauma, bilateral knees.  His request for service connection for his hearing loss was denied.

Army Regulation 635-200, then in effect, provides for the administrative separation of enlisted soldiers.  Paragraph 16-5 provides for early separation of personnel denied reenlistment, and paragraph 16-5b states that soldiers who perceive that they will be unable to overcome a locally imposed bar to reenlistment will be allowed to be discharged.

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 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 6 November 1992, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 6 November 1995.

The application is dated 27 February 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

__jhk___  ___wtm__  __jpi___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019543	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990811	
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.