MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             19 August 1999   
	DOCKET NUMBER: 

	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. Calvin M. Fowler		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Melvin H. Meyer		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 separation.

The applicant states that he was discharged because of a personality disorder; consequently his discharge was a medical discharge and not an administrative one.  He therefore lost possible retirement income and benefits were denied him because the discharge was under honorable conditions and not just honorable.   

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 31 January 1974, completed training, and in June 1974 was assigned to Fort Carson, Colorado, as a supply clerk.  On 26 July 1974 the applicant received nonjudicial punishment under Article 15, UCMJ, for altering an official record with intent to deceive.  

The applicant was AWOL from 26 September 1974 through 11 October 1974.  He received nonjudicial punishment on 6 December 1974 for AWOL from            1 November 1974 to 21 November 1974.  He was AWOL from                           12 December 1974 through 20 January 1975, and again from 7 April 1975 through 9 June 1975.  

The applicant’s commanding officer notified the applicant that he was recommending that he be discharged under the provisions of Army Regulation 635-200, paragraph 13-5b, for unsuitability.  The applicant consulted with counsel, and stated that he understood the basis for the contemplated action.  He waived consideration of his case before a board of officers, and declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the discharge under conditions other than honorable that he might receive. 

On 7 July 1975 the applicant’s commanding officer requested a waiver for rehabilitative transfer of the applicant, stating that he was currently in confinement and had been recommended for immediate discharge due to apathy by psychiatrists at Fort Carson.

A 21 July 1975 statement by an NCO indicates that the applicant had been counseled many times by himself and an officer for his failure to perform his duties satisfactorily.

On 22 July 1975 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged for unsuitability, because of his character and behavioral disorders.

On 28 July 1975 the separation authority approved the recommendation and the request for waiver of rehabilitative transfer, and directed that the applicant be issued a General Discharge Certificate.  The applicant was discharged on           5 August 1975.  He had 1 year, 2 months, and 19 days of service, and 108 days of lost time.  

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.   Paragraph 13-5b (3) provided for the separation for unsuitability of those individuals because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations is no bar to discharge for unsuitability.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.
  
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 5 August 1975, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 5 August 1978.

The application is dated 14 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

____cmf_  __cla___  __mhm___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR199902102	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990819	
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.