MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 August 1999     
	DOCKET NUMBER:   AR1999021758

	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. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ernest W/ :Lutz, Jr.		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:  That his bad conduct discharge be upgraded to a general discharge or that he be medically retired or separated.  He states, in effect, that his use of drugs was the basis of his problems and that he received the bad conduct discharge because he was unable to provide his commander with the name of the individual who sold him drugs.  He maintains that, as such the discharge was unfair.  He also notes that he did not use drugs prior to coming into the Army and while he does not blame the Army for his drug use he does blame the units he was assigned to and himself.  He submits no evidence in support of his request.

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 24 August 1971 and was assigned to Germany in January 1972.  In November 1972, as a result of command directed referral, he was enrolled in an alcohol and drug abuse control program for alcohol and drug use he indicated began in his mid-teens.  Documents indicate that he continued to have follow-up contact with the program until August 1973 when he was released because he was pending the bad conduct discharge.

In December 1972 he was punished under Article 15 of the UCMJ for disobeying a published regulation.  

On 21 January 1973 the applicant assaulted another soldier “by cutting him on the face, chest, and right arm” with “a sharp fingernail knife.”  In consonant with his plea he was found guilty of the assault charge and sentenced to a bad conduct discharge, confinement, forfeiture and reduction to pay grade E-1.  The sentence was adjudged in March 1973 and approved in May 1973.

A separation physical examination, conducted in February 1974, found the applicant medically qualified for separation with a physical profile of 1-1-1-1-1-1 and the applicant indicated that he was in “fair” health.  A mental status evaluation, also conducted in February 1974, found the applicant mentally responsible, able to distinguish right from wrong and able to adhere to the right.

On 15 February 1974 the applicant was discharged under other than honorable conditions and issued a bad conduct discharge certificate.

Army Regulation 635-200 states that an honorable characterization of service (i.e. general or honorable discharge) is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. There is no evidence, nor has the applicant provided any, which confirms he had a medical condition, which warranted referral for disability processing at the time of his administrative separation.

In 1976 the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 in 1976, the year the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired in 1979.

The application is dated 19 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

___mdm_  __aao___  __ewl___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021758	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990805	
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. 110.00		
3. 142.00		
4.		
5.		
6.