MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            11 August 1999    
	DOCKET NUMBER:   AR1999023642

	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. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John P. Infante		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 separation or retirement.  He states, in effect, that as a result of his treatment while in confinement he has suffered greatly, has been unable to retain a job, and is homeless.  In support of his request he submits one self-authored statement dated 2 March 1998.

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 was inducted and entered active duty on 22 August 1966 and immediately departed AWOL.  He returned to military control on 22 October 1966 and was convicted by a special court-martial.  Upon his release from in December 1966 he again departed AWOL.

The applicant returned to military control in February 1967 and was convicted by a special court-martial.

In March 1967 the applicant’s commander initiated action to administratively separate the applicant under the provisions of Army Regulation 635-212 for unfitness.  A mental status evaluation, conducted on 9 March 1967 concluded that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, although he exhibited an “immature personality.”  The evaluating physician noted there was “no evidence of underlying previously unrecognized medically disqualifying emotional illness” and cleared the applicant for “any administrative action deemed appropriate….”

The applicant acknowledged receipt of the proposed separation and indicated he understood the ramifications of a less than honorable discharge.  He waived his attendant rights and made no statements on his own behalf.

His separation physical examination found him medically qualified for separation with a physical profile of 1-1-1-1-2-1 (the “2” representing a long-standing problem with myopia).

The recommendation was approved and on 3 April 1967 the applicant was released from active duty under other than honorable conditions with an undesirable discharge certificate.

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.

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.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the medical advisor to the Board.  It contains no information, advice or recommendation, which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.  The applicant was provided a copy of the opinion but did not respond.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 April 1967, 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 3 April 1970.

The application is dated 27 February 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

__jhk___  __wtm___  ___jpi__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023642	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990811	
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.