MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 July 1999                  
	DOCKET NUMBER:   AR1999021904

	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. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 and pay and allowance for a five month period he claims he was not paid for while in the military.  He also asks that his records be corrected to reflect eligibility for an “educational assistance program.”  He states, in effect, that had the military taken care of his medical problems he would not be incarcerated today.  Additionally, he states he was not “paid for 5 of the 6 months” he was in the service.  He submits no evidence in support of his request, other than a copy of his DD Form 214 which is contained in his service personnel file.

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 25 March 1983 at the age of 18 with 12 years of formal education.

On 29 March 1983 he was admitted to the medical facility at Fort Benning, Georgia after he began exhibiting aggressive behavior and hostility.  He was subsequently transferred to Eisenhower Army Hospital at Fort Gordon, Georgia with a diagnosis of schizophrenia.

While at Fort Gordon a psychological evaluation revealed that the applicant had exhibited aggressive behavior while growing up and had taken “Ritalin and Mellarial” when he was 15 because of “being hyper and being the class clown…yelling out and being disruptive.”

By August 1983 a Physical Evaluation Board concluded that the applicant was unfit for continued service as a result of schizophreniform disorder which was determined to have existed prior to his entry (EPTS) on active duty and which was not aggravated by his service.  The PEB recommended separation without entitlement to disability benefits.

On 7 October 1983 the applicant was discharged as a result of physical disability without severance pay.  His separation document indicates he was paid for 
16 days of accrued leave and that he was a participant in the Veteran’s Educational Assistance Program (VEAP).

Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnoses or should have been diagnosed.

Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.

The VEAP was an educational incentive program offered to individuals who enlisted between 1 January 1977 and 30 June 1985.  The program was designed for the post-Vietnam era soldier as a means of establishing a fund to support their educational objectives following their military service.  For every dollar contributed by a soldier, the government matched with a two-dollar contribution to the individual's VEAP account.  Participation in the VEAP was a voluntary option and was replaced, in July 1985, by the Montgomery GI Bill and the Army College Fund Program.  A serviceperson who participated in VEAP is eligible to receive benefits up to 10 years from the date of last discharge or release from active duty providing at least 3 months of contributions were available and the individual had completed his first active-duty commitment.  Education eligibility may be established even though the required active duty is not completed if the veteran receives VA disability compensation or military disability retirement, served a previous period of at least 24 continuous months of active duty before 17 October 1981 or was discharged or released for early out, hardship or service-connected disability.  Administration of the VEAP program rest with the Department of Veterans’ Affairs.  The evidence indicates that although the applicant may have participated in the VEAP he did not complete the required period of active duty to qualify for receipt of benefits.

There is no evidence, which confirms the applicant is entitled to any missed pay or allowances.  The fact that he received pay for unused leave at the time of his separation tends to indicate that he was receiving appropriate pay and allowances at the time of 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.  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 7 October 1983, the date he was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
7 October 1986.
The application is dated 13 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

___fne__  __lem___  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999021904	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
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. 110.00		
3. 108.0		
4.		
5.		
6.