MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 September 1999  
	DOCKET NUMBER:   AR1999020726

	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	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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, disability retirement.  He states he was imprisoned at the U.S. Army Disciplinary Barracks from 1983 until 1987 at which time he discovered that he was HIV positive.  He asks that his discharge be upgraded so that he can receive medical care.  He indicates that he feels it was an “injustice to be kicked out of the Army with this illness without any medical help….”  He submits no evidence in support of his claim.

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:

He entered active duty on 7 May 1980 and served without incident until 1983 when he was convicted by a general court-martial of attempted rape, sodomy, and aggravated assault.  His sentence included 8 ½ years of confinement, total forfeiture, reduction to pay grade E-1, and a dishonorable discharge.  The discharge was effective 21 June 1984.

His medical records indicate that in late 1985, while an inmate at the disciplinary barracks, he was identified as an HTLV-III antibody positive.  His military records contains a 1991 letter indicating that he had been arrested on a charge of burglary and rape, subsequent to this release from the Disciplinary Barracks and as of his 1997 application date the applicant listed his address as Macon State Prison in Oglethorpe, Georgia.

Army Regulation 635-40, which establishes the policies and procedures for separation by reason of disability, states that a soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing.  Additionally, only medical conditions which were incurred or aggravated during individual’s military service and which rendered that individual unfit for continued military service may be considered as a basis for disability processing.  In this particular case the applicant had been discharged from the Army and as such he was no longer eligible for disability processing.

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 21 June 1984, the date he was dishonorably discharged from the Army.  The time for the applicant to file a request for correction of any error or injustice expired on 21 June 1987.

The application is dated 22 October 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

___sk___  __jea___  __klw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999020726	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
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. 108.00		
2. 142.00		
3.		
4.		
5.		
6.