MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            28 July 1999                  
	DOCKET NUMBER:   AR1999023075

	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 N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 that he should have received a medical retirement based on his medical condition of “major depression” which he notes was incurred while he was on active duty.  In support of his request he submits a copy of a VA rating decision granting him a 30 percent disability rating for major depression effective 1 January 1993.

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 1 October 1987 as a medical service captain after serving three years of active duty as an Air Force officer.

His records indicate that he passed a physical fitness test in November 1990 and again in April 1992.  However, in July 1992 the applicant was relieved for cause after his “demonstrated lack of professionalism and integrity and poor judgment and leadership ability in an incident when, as the Administrative Officer of the Day, he entered the Hospital Post Exchange [at Fort Polk, Louisiana], utilizing the hospital Master Key entrusted to his care, and misappropriated several items for his personal use.”

A 30 July 1992 mental status evaluation, conducted as a result of the 17 July 1992 incident, concluded the applicant was suffering from major depression, moderate with moderate to severe symptoms and functional impairment and narcissistic personality traits as manifested by his inability to ask for help under stressed times and his seemingly inability to tolerate narcissistic injury from authority figures.  His depression stemmed from problems associated with his divorce and remarriage and his inability to communicate with his daughter as well as the health of his mother.  The evaluating physician, however, noted the applicant was responsible for his actions and was mentally sound for continued military service.

As a result of the 17 July 1992 incident, the applicant ultimately requested resignation in lieu of elimination and on 14 December 1992 was discharged under honorable conditions under the provision of Army Regulation 635-120, Chapter 4.

In 1995 the Army Discharge Review Board, at the applicant’s urging, upgraded his discharge to honorable.

Subsequent to his separation the VA granted him a 30 percent disability rating for major depression effective 1 January 1993.

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.

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.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.  The evidence of record indicates he did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or 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 14 December 1992, 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 14 December 1995.

The application is dated 1 September 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

___fne__  __lem___  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023075	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990728	
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. 142.00		
2. 108.00		
3.		
4.		
5.		
6.