MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             28 July 1999  
	DOCKET NUMBER:   AR1999019765

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 discharge.

The applicant states that he was having knee and foot problems in 1976 while on active duty.  He got calluses on his feet from wearing Army boots, and foot rash from wool socks, which caused his feet to swell.  He injured his left knee in training.  He got TB while on active duty which was a 100 percent service connected disability, which was reduced to 80 percent.  He was exposed to hepatitis because of bad blood from TB.     

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 12 February 1976, and completed training at Fort Jackson, South Carolina, and Fort Lee, Virginia.  On   3 August 1976 he received nonjudicial punishment under Article 15, UCMJ, for AWOL.  In August 1976 he was assigned to a supply and service company in Germany as a laundry and bath helper.  On 1 October 1976 he received nonjudicial punishment for disobeying a lawful order.  On 7 October 1976 he received nonjudicial punishment for failing to go to his appointed place of duty on three occasions.  On 20 October 1976 he received nonjudicial punishment for failing to go to his place of duty on four occasions.  The applicant was counseled about his conduct and duty performance on nine separate occasions.

On 3 November 1976 the applicant’s commanding officer notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-37, the expeditious discharge program.  He informed the applicant that he was recommending that he be furnished a general discharge.

The applicant consulted with counsel and stated that he voluntarily consented to the discharge.  He declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive.  The separation authority approved a recommendation that he be discharged and directed that he be issued a General Discharge Certificate.
The applicant was discharged on 12 November 1976 at Fort Jackson, South Carolina.  He had 9 months and 1 day of service.

The applicant’s military records contain no medical records.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

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 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 635-40, paragraph 2-2b, as amended, 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 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 12 November 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 12 November 1979.

The application is dated 14 November 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

_fne____  __lem___  __mvt___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019765	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
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.