MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 June 1999      
	DOCKET NUMBER:   AR1999022531

	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. James M. Alward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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.  She states, in effect, that she was too traumatized at the time of her voluntary separation to understand what was happening and ultimately was awarded a 100 percent disability rating by the VA for “Post Traumatic Stress Disorder with Major Depression.”  In support of her request she submits copies of her 1998 VA disability ruling.  The applicant also submits a self-authored statement in which she states that she unfairly received an Article 15 following an altercation with another soldier.  Essentially she indicates that her original statement of the circumstances was altered to make it appear that she was at fault and that her unit commander did not allow her to present her side of the story.  She also states that she was assigned a lawyer who was a friend of her commander who told her she was going to “fry.”  The applicant further states that she was raped by a boyfriend, at gunpoint in his room, in November 1989 which resulted in a pregnancy.  She notes she later miscarried.  She states that no one would believe her story and when he raped her again in October 1990 she could not bring herself to seek help from her superiors.  She states the second rape also resulted in pregnancy and although she considered having an abortion she finally chose to have the child.  She notes “around January 1991, the medical problems began” but she did not miscarry.  She notes in May 1991 she was given “a direct order to give birth” by doctors at Tripler Army Medical Center who then induced labor from “7:30 am on 28 May 1991 until 3:10 am on 29 May 1991” in spite of the fact that she was only 6 months pregnant.  As a result of the “forced delivery” she states her son “came into this world entirely too soon” and “he has several mental problems to include Attention Deficit Disorder and possible Pervasive Developmental Disorder and Autism.”  The applicant submits no documentation to support her contentions other than her own statement and the VA rating decision.

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:

She enlisted and entered active duty on 2 December 1987 at the age of 18 and successfully completed training as an aircraft armament missile systems repairer.

The only record that was available to the Board was her Official Military Personnel File on microfiche.  That record contains no evidence of any disciplinary action and no record of punishment under Article 15 of the UCMJ.

Her file does contain a 7 May 1991 line of duty investigation indicating the applicant was involved in a motor vehicle accident on 21 April 1991 while assigned to Schofield Barracks, Hawaii.  The report indicates she was driving her own vehicle in a parking lot when it was struck by another vehicle.  At the time of incident, the statement notes, she was “eight (8) months pregnant….”  The applicant was admitted to Tripler Army Medical Center for observation and released on 23 April 1991.

On 26 July 1991 the applicant was voluntarily discharged under the provisions of Army Regulation 635-200, Chapter 8 for pregnancy.

Army Regulation 634-200, Chapter 8, provides authority for the voluntary separation of enlisted women because of pregnancy.  It notes that it is not the intent of the pregnancy separation policy that enlisted women would be separated under this chapter when the pregnancy terminates before separation is accomplished.  It states that in circumstances of an abnormal pregnancy course, when a soldier carries a pregnancy for 16 weeks or more, but then has an abortion, miscarriage, or an immature or premature delivery before separation is accomplished, the soldier will have the option to be retained or be separated per this chapters.  A medical officer must verify the duration of the pregnancy.  The soldier will be counseled concerning her option.  If she chooses to separate, the separation authority may set the separation date.  The soldier’s decision will be recorded as a signed statement and included in the records.  The applicant submitted no medical documentation that substantiates her request and records available to the Board did not contain any documents associated with her voluntary separation action.

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.

Army Regulation 635-40 states that when a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties 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 or because of an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred which immediately prior to, or coincident with, processing for separation or retirement for reason other than physical disability and which rendered the soldier unfit for further duty.
Title 38, United States Code, sections 310 and 331, permit 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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

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 26 July 1991, the date the applicant was voluntarily released from active duty and authenticated her separation document. The time for the applicant to file a request for correction of any error or injustice expired on 26 July 1994.

The application is dated 10 June 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

__jma___  __mhm___  ___alr__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022531	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990616	
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.