MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 June 1999                  
	DOCKET NUMBER:   AR1999022725

	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, that his military records be corrected to reflected disability retirement or separation with an honorable discharge.  He states, via a DD Form 293, that he has “PTSD” but submits no documentation to support his requests.

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 initially entered active duty on 23 February 1971 at the age of 18 for a period two years.  In September 1971, after several periods of a AWOL and two summary courts-martial, the applicant’s unit commander initiated action to separated the applicant because of unfitness.  The commander noted the applicant “has been an administrative burden and a disciplinary problem ever since his entry into this command.”  He indicated the applicant “is unwilling to serve honorably and obviously prefers to be mustered out….”

The applicant acknowledged receipt of the proposed separation and waived his attendant rights.  On 29 September 1971 the applicant was released from active duty under other than honorable conditions under the provisions of Army Regulation 635-212.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

On 17 August 1973 the applicant reenlisted for a period of 3 years.  His enlistment document makes no reference to the fact that he had any prior military service.  In October 1973, while at the Reception Station, Fort Polk, Louisiana, the applicant was charged with attempting to defraud the government, AWOL, and impersonating an non-commissioned officer.  Following referral of charges the applicant requested separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

His request was approved and on 30 October 1973, less than 3 months after his reenlistment, he was discharged under other than honorable conditions.  Again, the separation documents made no mention of his previous undesirable service.

Physical examinations conducted in August and September 1973 indicate the applicant’s health was good and that he was medically qualified for military service.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

In 1977, as a result of a special “DOD Discharge Review Program” the applicant’s 1971 discharge was upgraded to a general discharge.  In 1980 the Army Discharge Review Board denied the applicant’s petition to upgrade his 1973 discharge.

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 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.  There is no medical evidence, nor has the applicant provided any, which would serve as a basis for disability separation or retirement processing.

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.  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 30 October 1973, the date he was last released from active military service.  The time for the applicant to file a request for correction of any error or injustice expired on 30 October 1976.

The application is dated 13 July 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	AR1999022725	
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.