MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 August 1999    
	DOCKET NUMBER:   AR1999020452

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		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, physical disability separation or retirement.  

He states that he was injured while on active duty at Fort Lee, Virginia, and it was only after his head injury that he received his discharge because of marginal or non-productive performance.  He was discharged because of his inability to complete problem solving tasks or recall information.  Otherwise, he did very well from the beginning [of the class] until he suffered his head injury, a gash above his left eye requiring several stitches.  He was devastated because of his injury, ruining his Army career, a career he struggled to complete.  He tried very hard to complete his training, but he could not. 

The applicant has made numerous past inquiries in an attempt to obtain his medical records; and additionally has made four separate inquires in 1998, at that time expounding on his head injury, stating that he had been knocked unconscious after falling from a top bunk, hitting his head on a cigarette butt can, sustaining a gash above his left eye.  He was taken to the infirmary and treated.  After his injury he could not function at the same level as before and failed the course.  He was a capable soldier before his injury.  He completed basic training successfully.  He was not a quitter.
    
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 8 June 1977.  His enlistment documents show that he had 11 years of education.  He completed basic training and in August was assigned to the quartermaster school at Fort Lee, Virginia for training in the supply field (MOS 76P10).

He received nonjudicial punishment under Article 15, UCMJ on                           22 September 1977 for failing to go to class, again on 28 September for failing to go to bay guard, and again on 4 October for failing to report as a CQ runner.

A 28 September 1997 TDP (Trainee Discharge Program) counseling form indicates that the applicant entered the 76P10 course in August 1977, marginally completed two annexes of the course, but failed the third annex examination four times.  He had a negative attitude and admitted that he was not interested in the course.  He appeared very irresponsible.  He had the ability but not the desire.  He was recommended for separation.  That form shows that he was counseled on four occasions.

The applicant’s commanding officer notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-39, because of his lack of motivation and substandard performance. The applicant acknowledged notification of the proposed action, and the nature and consequences of non-completion of requisite active duty time for VA and other benefits.  He declined to submit a statement in his behalf, and stated that he did not desire a separation medical examination if the discharge was approved.  

On 30 September 1977, the applicant’s battalion commander, in forwarding the recommendation to discharge the applicant, stated that he had interviewed the applicant and determined that he was a quitter.  The applicant stated that he was too tired to pull bay guard duty so he did not perform the duty.  The applicant was physically capable of being a soldier, but since he did not get the MOS he desired, medical, he did not want to be a soldier.

On 4 October 1977 the separation authority approved the recommendation.  The applicant was discharged on 7 October 1977.  He had 4 months of service. 

In a 1996 psychology/neuropsychological evaluation, a neuropsychologist indicated that the applicant had a long history of legal problems after his discharge from the Army, and was imprisoned on three occasions, once for rape, once for burglary, and once again for theft.  Tests indicated that he was slow in an approach to tasks, but made no errors.  IQ tests showed developmental low intellectual functioning.  He was diagnosed as having an adjustment disorder, mixed depression and anxiety; mild mental retardation; and educational, occupational, economic, and social problems.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 180 days of training that they lacked the necessary motivation, discipline, ability or aptitude to become effective soldiers.  This program, known as the Trainee Discharge Program, mandated the award of an honorable discharge.

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 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 7 October 1977, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 7 October 1980.

The application is dated 29 October 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

__rvo___  __jma___  __mw____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020452	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
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.