MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            26 May 1999       
	DOCKET NUMBER:   AR1999019846

	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. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Barbara J. Ellis		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.  

The applicant states that he was treated for his conditions while in the Army and his service medical records support his contentions to change his discharge to a medical 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 four years on 14 August 1979 and remained on continuous active duty until his discharge in 1992.  He was promoted to Sergeant E-5 on 5 May 1987.  He completed the primary leadership development course (PLDC) in February 1988, and completed an ammunition specialist primary technical course in May 1988.  He received nonjudicial punishment under Article 15, UCMJ, on three occasions during his time on active duty, on 28 September 1982, 1 April 1987, and 1 September 1988.  His NCO evaluation report for the seven month period ending in January 1992, approximately three months prior to his discharge, shows that his rater stated that the applicant was completely committed to attaining the company’s goals, that he vigorously supported all command decisions, and that he should be sent to school and promoted.  That report shows that he passed the Army physical fitness test.  

A Fort Stewart, Georgia order published on 3 March 1992 transferred the applicant to a transition point for separation processing.  That order showed that the applicant was approved for SSB (special separation bonus) pay for 12 years and 7 months of active service.

Prior to his discharge from the Army, on 17 March 1992, the applicant signed an agreement to enlist in the Army National Guard for three years, effective           21 March 1992 as part of the transition enlistment program.  The enlistment documents show that his last physical examination was on 2 March 1992, and he received a physical profile serial of 1 1 1 1 1 1.

The applicant was discharged on 20 March 1992 at Fort Stewart under the FY 92 enlisted voluntary early transition program.  His DD Form 214 shows that he was awarded the Army Commendation Medal, the Army Achievement Medal (3d oak leaf cluster), the Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal, among others.  He received a SSB payment of $33,571.99.   
A VA decision of 2 December 1993 indicates that he was awarded a  30 percent service connected disability rating for a nervous condition, and a 10 percent rating for a back condition.

On 23 September 1995 the applicant completed Phase I of the Reserve Component NCO education system (RC-NCOES), BNCOC (basic NCO system) at the Pennsylvania Army National Guard Region I NCO academy.  His service school academic evaluation report shows that his positive attitude and motivation influenced others which resulted in high squad morale, and that he demonstrated the ability to be an effective squad/section leader and trainer.

In late 1991 and early 1992 the PERSCOM announced implementing instructions for the FY 92 enlisted voluntary early transition program and provided for the voluntary  release from active duty for specific categories of soldiers with monetary incentives authorized.  One of these incentives was a SSB, a lump sum payment equal to 15 percent of the soldier’s basic monthly pay, multiplied by 12 and multiplied again by the soldier’s years of service.  Soldiers approved for SSB must enter into a written agreement to serve in the Ready Reserve for a period of not less than three years.  Soldiers who receive SSB and who subsequently qualify for retired/retainer pay shall have deducted from their retired pay a proportionate amount based on the service for which SSB was received.

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 20 March 1992, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 20 March 1995.

The application is dated 19 February 1997 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

__mdm___  __aao___  __bje___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999019846	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990526	
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.