MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  .

	BOARD DATE:  2 September 1999                              
	DOCKET NUMBER:   AR1999021577

	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	
	Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson  		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. James M. Alward		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, the applicant requests physical disability retirement with an honorable characterization of service, and barring that, she be issued a DD Form 214 for the period 15 December 1978 to 16 November 1981 to show an honorable characterization of service in order to receive VA benefits.  (NOTE:  Her DD Form 214 of 10 August 1983 has been corrected to show continuous honorable active service from 15 December 1978 to                            16 November 1981).	  

She states that she is totally disabled and receiving social security payments.  She states that her administrative separation board was unfair.  The applicant submits a 15 page document in which she provides a synopsis of her military career, to include her assignments, awards received, and the circumstances that led up to administrative board proceedings; also, providing a narrative concerning the board proceedings and the events that occurred subsequent to those proceedings.    

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.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of her case on 20 August 1986 (COPY ATTACHED).

A  DD Form 214 shows an enlistment period from 10 July 1972 to                      14 December 1978 and that she was discharged for the purpose of immediate enlistment at Fort McClellan, Alabama.  She also had 1 year, 11 months, and     9 days of prior service.

A 20 March 1981 physical profile record shows the applicant’s physical profile serial as 1 1 P3 1 2 1, and that she had a ruptured disc (L5), lower lumbar sacral strain.  That document indicated that she would not be separated without prior medical evaluation. 

A 21 June 1982 report of psychiatric evaluation indicates that the applicant had no mental disorder, and that she was cleared for any administrative action deemed appropriate.

Statements from individuals who testified during the administrative board proceedings conducted in August 1982 indicate that she did have lower back pain and numbness in her right leg, and that she had been on convalescent leave.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her 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, she must be unable to perform the duties of her 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, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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 10 August 1983, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 10 August 1986.

The application is dated 12 September 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

__mkp__  ___tnk___  ____jma_  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021577	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990902	
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.    110.00		
4.		
5.		
6.