MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 August 1999   
	DOCKET NUMBER:   AR1999020674

	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. Edward Williamson		Member	
	Ms. Sherri V. Ward		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.

That he should have been medically retired and not separated with pay for the convenience of the government.  He did not realize the extent of his medical condition until examined by the VA.  At the time he had severe pain in his ankle, had four operations on his feet, lower back strain, consistent gas on the stomach, and psychotic disorder.  He also had a number of other mental and physical problems related to Persian Gulf illnesses.  He served faithfully for 16 plus year with a perfect record.  He had a number of illnesses and injuries, both mental and physical, that are chronic and permanent.  He is very sick, living at the poverty level.  His only source of income is a small social security check, with no help from the VA because of his severance pay.  He takes 15 different types of medications daily.  He is desperate and needs help.  He should never have been discharged and doesn’t believe he was informed of his rights, benefits, and privileges.  

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 entered the Army on 10 June 1974 and was released from active duty in the grade of E-4 on 4 June 1976 with an honorable characterization of service.  He had 1 year, 11 months, and 25 days of service.

He enlisted on 29 November 1977 and remained on continuous active duty until his discharge in 1992.  He attained the rank of Sergeant E-5, completed the primary leadership development course, the Basic NCO course (BNCOC), and a basic leadership course, among other courses completed.  He received three awards of the Army Achievement Medal, five awards of the Good Conduct Medal, the Southwest Asia Service Medal with two bronze service stars, the Kuwait Liberation Medal, and the National Defense Service Medal, among his other awards.

The applicant’s evaluation reports from 1983 through 1990, except for the report ending in October 1988, show that he passed the Army physical training tests during that period.  The report ending in October 1988 shows that he had a profile which prevented him from taking the test and hampered him in performing in his specialty.

The applicant was discharged on 31 March 1992 under the provisions of Army Regulation 635-200, paragraph 16-8, under the FY 92 enlisted voluntary early transition program.  He had over 16 years of service.  He received a SSB (special separation benefit) payment of $44,155.80.  On 1 April 1992 he enlisted in the Army Reserve for three years. 

Army Regulation 635-200 sets policies, standards, and procedures for the administrative separation of enlisted soldiers.  Paragraph 16-8 provides for the early separation due to a reduction in force, strength limitations, or budgetary constraints, either voluntary or involuntary early separation.  The Total Army Personnel Command (PERSCOM) will implement the program by issuing separation instructions pertaining to a specific class or category of soldiers. 

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.

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 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 31 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 31 March 1995.

The application is dated 16 December 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___  ___ew___  __svw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020674	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990816	
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.