MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 August 1999    
	DOCKET NUMBER:   AR1999023227

	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:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James M. Alward		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, physical disability discharge.

The applicant states that he should have received a medical discharge because of psychiatric problems and hearing problems.

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 four years on 13 December 1972, completed training as an infantryman, and in March 1973 was assigned to an infantry company at Fort Campbell, Kentucky.

On 31 July 1974 the applicant received nonjudicial punishment under Article 15, UCMJ, for attempting to hit an NCO.  On 1 November 1974 he received nonjudicial punishment for wrongfully having marijuana in his possession, and on 28 May 1975 for being drunk and disorderly. 

A 25 June 1995 medical document shows that the applicant had a temporary profile because of a fracture to his right talus and right med malleolus.

In July 1995 the applicant was assigned to an infantry company in Germany.

On 30 January 1976 the applicant received nonjudicial punishment for disrespect to an NCO, and for wrongfully using provoking words to an NCO.

Orders published on 29 March 1976 show that the applicant was reduced to private E-1 because of an approved undesirable discharge from the Army.  He was transferred to Fort Dix, New Jersey for separation processing.

The applicant was discharged at Fort Dix on 31 March 1976 under the provisions of Army Regulation 635-200, chapter 10.  He had 3 years, 3 months, and18 days of service.

On 26 June 1979 the applicant authorized the release of medical, psychiatric, psychological, and social service data from his Army records, to the Court of Common Pleas Criminal Division, Allegheny County Behavior Clinic, for an evaluation for the court of common pleas criminal division.  The reply to that agency from the National Personnel Records Center showed that the applicant was separated with an other than honorable conditions discharge because of conduct triable by a court-martial, and that his service record showed no neuropsychiatric history. 

Army Regulation 635-200 sets forth the basic authority for the 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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

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 31 March 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 31 March 1979.

The application is dated 9 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

__rvo___  ___jma__  ___mw___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023227	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990812	
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.