MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 July 1999       
	DOCKET NUMBER:   AR1999022955

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Meta Waller		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 fell while in the military resulting in tremendous aggravation of his knee and “leading up to several surgeries.”  In support of his request he submits copies of medical and insurance documents relating to his knee condition.

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 11 April 1979 and on 10 May 1979 his unit commander initiated action to administratively separate the applicant under the Trainee Discharge Program.  The commander noted the applicant consistently failed to meet minimum training standards and had “fallen behind” his peers.  He indicated that the applicant had “difficulty in performing at the pace and level required in Basic Training and [his] failure to respond to numerous counseling sessions and additional training” characterized him as “unfit for retention in the U.S. Army.”

The applicant acknowledged receipt of the proposed separation and waived his right to a separation physical examination.

A 24 May 1979 data sheet indicates his physical profile was 1-1-1-1-1-1 and his physical category was “A” indicating that he was “considered physically qualified for separation….”  There is no mention in any of his separation documents that he sustained any injury to his right knee while undergoing training.

At his request the applicant was placed in an excess leave status effective 
11 May 1979 and he was separated in absentia on 24 May 1979.

A statement submitted with his application from the West End Orthopedic Clinic, dated 5 May 1997, notes the applicant underwent a right knee replacement in May 1995 as a result of degenerative arthritis of the knee.  He had undergone arthroscopic surgery on the knee in 1994.  The physician noted that “following the total knee replacement, he fell (approximately two weeks after the knee replacement).”

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 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty 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.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by 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 reasons other than physical disability and which rendered the soldier unfit for further duty. There is no evidence, nor has the applicant provided any, which confirms he had a medical condition which warranted referral for disability processing at the time of his administrative separation.

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 24 May 1979, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 24 May 1982.

The application is dated 12 November 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

___inw__  __jea___  ___mw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022955	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990707	
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.