MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:  8 September 1999                              
	DOCKET NUMBER:   AR1999022132

	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 H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, 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:  In effect, physical disability separation.

The applicant states that he was injured because of an NCO’s negligence and therefore could not complete basic training.  A sergeant hit him with a trash can, and the next morning he had to run, and had not been treated for his injuries.  He finally went to the hospital the next morning and was sent to physical therapy, and had more medical problems after that  He had repeated trips to the hospital, had a medical profile, which his unit violated, and could not complete training.  During discharge processing he contracted pneumonia and went to the hospital, and while under medication he was coerced into signing discharge papers.  After his discharge he proved that his injuries were caused by gross negligence [by the Army] and were service connected.  Another medical problem surfaced, reflect sympathetic dystrophy syndrome (RSDS).  Because of the problem he had with his right leg, he fell down the stairs and hurt his back.  He receives medical care from the VA.   

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 6 September 1990 and was assigned to Fort Jackson, South Carolina for basic training.

On 23 October 1990 the applicant was counseled because he had not demonstrated any of the qualities required to complete basic training.  He scored well below average in drill and ceremonies, physical training, appearance, and attitude, in addition to failing his first diagnostic physical training test.  He was referred to the company commander for further counseling.

On 31 October 1990 he was counseled because of his inability to train with the 4th platoon.  He had not shown progress in any of the tasks presented to him, had not shown any motivation, and had not passed the diagnostic physical training test, nor shown any improvement.  He received a rehabilitative transfer to the 2nd platoon.  He was counseled again on that date because of his overweight condition.

On 13 November 1990 the applicant was evaluated by a nurse in the community mental health service.  That evaluation revealed that the applicant stated that he 

saw no reason for him to be in basic training, and he could not pass the physical training requirements.  The applicant stated that he always had some learning difficulty with retention of information.  He was assessed by psychology and at that time stated he did not want to be in the Army.  His condition was diagnosed as an adjustment disorder not otherwise specified with work inhibition and mixed emotional features.  He was recommended for separation under the provisions of Army Regulation 635-200, paragraph 11-2. 

On 14 November 1990 he was counseled again for failure to perform assigned tasks and his negative attitude.

On 16 November 1990 the acting first sergeant of his unit informed the applicant that he was recommending that he be separated from the Army.  On that same day, his commanding officer informed him likewise, because of his inability to adjust to military life, his poor physical condition and lack of motivation.  He had failed every diagnostic physical training test, had not qualified with the rifle, and was slow to grasp military subjects.  His lack of motivation and inability both physically and mentally made him unsuitable for military life. 

On 25 November 1990 the applicant’s commanding officer notified the applicant that he was initiating action to separate the applicant from the Army under the provisions of Army Regulation 635-200, chapter 11, because of adjustment disorder with work inhibition and mixed emotional features.  The applicant acknowledged receipt of the proposed action, and stated that he understood that if the action was approved he would receive an entry level separation with uncharacterized service.  He stated that he did not desire to consult with counsel, and did not desire to make statements in his own behalf.  He stated that he did not want a separation physical.  

The applicant’s commanding officer recommended to the separation authority that the applicant be separated.  On 5 December 1990 the separation authority approved the recommendation and stated that the applicant would be discharged and that his character of service would be uncharacterized. 

The applicant was discharged on 13 December 1990.  He had 3 months and      8 days of service. 

On 11 February 1993 the VA notified the applicant that he had been granted a   10 percent service connected disability rating for minimal osteorthritis of his right knee.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military
environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

Army Regulation 635-40, paragraph 3-2b, 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 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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 13 December 1990, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 December 1993.

The application is dated 15 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

___fkm__  ___klw__  ___owt___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022132	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
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.