MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            4 August 1999     
	DOCKET NUMBER:   AR1999022462

	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 K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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.  He states, in effect, that he is 30 percent or more disabled, unemployable, and totally and permanently disabled to the extent that he qualifies for retirement.  He notes he developed warts on his penis while in basic training and because he was not allowed to heal properly the subsequent “surgery and circumcision resulted in [his] permanent celibacy.”  Additionally, he states that he also injured his back during basic training which “escalated into severe spinal arthritis” and that “his exposure to unaccustomed damp climate and prolonged (at times) submergence in water –filled rice paddies” while in Vietnam “caused severe inflammation of Rheumatoid Arthritis in pre-injured spine and other joints.”  He contends he was never afforded a proper discharge physical and as such was denied “certification and rating for these injuries….”

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 12 August 1968 and completed training as an infantryman prior to being assigned to Vietnam in January 1969.  He remained in Vietnam until January 1970 and subsequently served an additional tour of duty in Vietnam between July 1970 and July 1971.

In June 1970, prior to his return to Vietnam, he was convicted by a summary court-martial for three counts of AWOL totaling less than 15 days.  He was punished on two separated occasions under Article 15 of the UCMJ.

In December 1971, while assigned to Fort Knox, Kentucky, the applicant’s unit commander initiated action to administratively separate the applicant under the provisions of Army Regulation 635-212 for unsuitability.  The commander noted that since the applicant’s arrival at Fort Knox he “has repeatedly demonstrated a defective attitude, which is evident in his appearance and every aspect of his performance of duty.  He is totally undependable and is reluctant to comply with even the simplest of tasks.”  The commander also noted that the applicant was pending punishment for approximately 37 days of AWOL between September and November 1971.

The applicant acknowledged receipt of the proposed separation, consulted with counsel and waived his attendant rights.

Although records available to the Board do not contain any service medical records the applicant did authenticate a statement on 21 January 1972 that there had been no change in his medical condition since his last evaluation except for a change in his “mental condition.”  A mental status evaluation, conducted on 
17 December 1971 found the applicant mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  The evaluating physician noted the applicant met Army retention standards.

On 21 January 1972 the applicant was discharged under honorable conditions (general discharge).  At the time of his release he had 3 years, 3 months, and 20 days of active Federal service and more than 50 days of lost time.

As of October 1998 the applicant was an inmate at the Western Missouri Correction Center.

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 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.  There is no evidence, and the applicant has not provided any, which confirms he was medically unable to perform the duties of his office, grade, rank or rating at time of his separation in 1972.

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 21 January 1972, the date the applicant 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 21 January 1975.

The application is dated 6 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___  ___inw__  __gdp___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	1999022462	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990804	
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. 142.00		
3.		
4.		
5.		
6.