MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            11 March 1999                  
	DOCKET NUMBER:   AR1999022962

	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 Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		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 retirement or separation, and reinstatement of his rank to pay grade E-4, with the restoration of all rights, privileges, and property.

The applicant states that he received a medical waiver for bilateral foot disorder from the VA in Philadelphia.  He was informed that he would be reclassified [into another specialty].  He would report for duty and be sent home, and was told that he would receive something in the mail, which never happened.  He was told to go home for a whole year from 1986 to 1987 and then they sent him a notice for missing drills in 1987, which happened to be 1986 drills.  He states that he did show his reserve unit his medical documents.     

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 28 February 1977.  He was released from active duty on 19 February 1980.  His DD Form 214 shows that was an infantryman.  

The applicant’s medical records show that he was treated for problems with his feet, i.e.,  corns on his feet, flat feet, and fallen arches, since December of 1977. 
A 6 March 1979 clinical record shows that the applicant, an infantryman, stated that he could not march, and was treated for pes planus (flat feet).  The applicant received a temporary profile for fallen arches on 21 April 1979 that continued through 21 July of that year.

On 5 August 1981 the applicant was transferred from the Army Reserve Control Group to Company B,1st Battalion, 315th Infantry, a Reserve unit in Bristol, Pennsylvania.  On 6 August he completed a document explaining his obligations and participation requirements for entitlement to an affiliation bonus.

He enlisted in the Army Reserve for six years on 13 February 1983.

A 2 August 1984 medical record indicates that he was treated for ingrown toe nails for both feet.

An 8 May 1985 radiographic report indicates that the applicant had bilateral foot pain since1978 – now had callus formation and hammer toes.

The applicant was counseled for failure to report for a scheduled formation on      19 January 1985.  He was absent from training assemblies on 8 and 9 June 1985 21 and 22 September 1985, 5 and 6 October 1985, and 16 and                           17 November 1985.  He was notified of these absences by certified mail, in which he acknowledged receipt and/or the mail was returned as unclaimed.

On 18 July 1985 the VA notified the applicant that his claim for disability compensation had been approved in the amount of $66.00, a 10 percent rating, effective 1 May 1985, for flat feet.

A 21 August 1985 medical record indicates that the applicant had been seen in podiatry with chronically painful corns and calluses.
 
A 21 August 1985 note from someone in the VA indicated that the applicant had foot deformities which would require surgery, and asked if it would be possible for the applicant to be out of uniform with respect to foot gear.
 
On 24 August 1985 the applicant was reduced to pay grade E-3 in accordance with the provisions of Army Regulation 140-158, chapter 3.

A 31 August 1985 copy of an individual sick slip from his unit, Company B, 315th Infantry, shows that he had a flat foot deformity and needed an examination.  The examining physician indicated he should do no running, standing, or walking for the next 72 hours, that the applicant’s feet were extremely sore, and that he required periodical foot soaking for the next three days.
 
On 16 October 1985 he was notified by certified mail to contact his unit in order to be scheduled for a physical examination to determine if he should retain his infantry specialty.  The mail was returned to the unit.

A 24 October 1985 letter to a member of congress, an official at First U.S. Army, informed the MC that the applicant did not have a medical profile which would limit his duties, that the applicant had to be medically evaluated to determine if he should perform limited duties, and that the applicant would be advised by his unit of the scheduled medical examination appointment.  The MC was also informed that the applicant had been awarded a 10 percent disability rating by the VA, and could not collect both disability pay and pay for attendance at training assemblies, and that the applicant had been directed to initiate a document to relinquish a portion of his VA pay. 

On 31 October 1985 the applicant’s commanding officer requested that the VA provide the medical records concerning his service connected disability to determine if the applicant should be reclassified.
A 19 November 1985 telephone record indicates that a lieutenant in the applicant’s unit had responded to a member of congress (MC) concerning the applicant’s being sent home (from a unit training assembly).  That lieutenant informed the MC that the applicant had been notified to bring in documents verifying his disability, that the applicant was receiving bonus payments for being an infantryman, however, he was not eligible to receive those payments if he had a profile that prevented him form standing or walking for long periods of time.  He informed the MC that the applicant had been told that the applicant would be examined to determine if he should retain his infantry specialty.  He told the MC that the applicant would be restored to his previous rank.

A 20 November 1985 medical record indicates that the applicant had painful corns and calluses.

On 26 November 1985 the applicant was counseled and informed that he had to obtain a copy of his physical from the VA in order for him to be medically reclassified, that he had to obtain this physical by 14 December, and that in the meantime he still had to attend drills. 

The applicant was absent from unit training assemblies on 25 and 26 January 1986, and 8 and 9 February 1986.  He was notified of these absences by certified mail.  The mail was unclaimed. 

The applicant had 12 unexcused absences from unit training assemblies during February, March, and April 1987.  In each month, he was notified of these absences shortly after he missed the unit training assemblies for that month, by certified mail.  He acknowledged receipt of the February notification to him.  The remaining notification letters were returned.  

On 17 June 1987 the applicant was assigned to the Reserve Control Group (Reinforcement) at St. Louis, because of unsatisfactory participation in his unit.
He was discharged from the Army in the pay grade of E-3 on 12 February 1989. 

Army Regulation 140-148, then in effect, provides for the promotion and reduction of Army Reserve enlisted personnel.  Chapter 3 of that regulation provides reasons for reduction, to include inefficiency and misconduct.  

Army Regulation 135-91 defines Army Reserve service obligations and prescribes policies and procedures governing participation requirements, to include excused and unexcused absences, and enforcement procedures.  Chapter 4 provides guidance concerning absences from training, and states in pertinent part, that enlisted soldiers who are obligated by statute or contract will be charged with unsatisfactory participation when without proper authority they accrue in any 1-year period, a total of nine or more unexcused absences from scheduled drills.  Enlisted soldiers who are charged with unsatisfactory participation may be transferred to the IRR.  

Documentation of unexcused absences will be via a prescribed letter of instruction delivered to the soldier, either in person or by certified mail.  A copy of each notice will be placed in the soldier’s MPRJ.

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, paragraph 2-2b, as amended, 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.

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.

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 12 February 1989, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 12 February 1992.

The application is dated 24 April 1997 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:

________  __vbc___  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___cla__  ________  ___clg__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999022962	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990311	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 142.00		
2.  108.00		
3.  128.00		
4.  137.00		
5.		
6.