MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            22 July 1999                  
	DOCKET NUMBER:   AR1999023684

	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. Calvin M. Fowler		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. Raymond J. Wagner		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.  She states, in effect, that she is currently rated as 100 percent disabled by the VA as a result of PTSD and that it just “took time for bomb to explode.”  She notes she originally received an honorable discharge “due to completion of commitment.”  The applicant states she was raped “prior to being sexually assaulted again while on active duty” during a training exercise.  In her self-authored statement accompanying her request she details a variety of complaints including her contention that the investigation following the assault was mishandled and falsified.  In addition to her self-authored statement, she includes a copy of a 1997 VA rating granting her a 100 percent disability rating for PTSD and a statement from her spouse regarding her 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:

In February 1976 the applicant underwent a physical examination in preparation for enlistment in the United States Navy.  The examination noted she was fully qualified for enlistment with a physical profile of 1-1-1-1-1-1.  In August 1976 she was discharged from the US Naval Reserve-Delayed Entry Program when she “refused to enlist” in the Navy.

On 4 November 1976 she enlisted in the Army Reserve for a period of 3 years in pay grade E-3 (apparently under a “stripes for skills” enlistment option).  She successfully completed basic training and in July 1977 was promoted to pay grade E-4.  Subsequent documents, contained in her file, note she successfully completed “the two-week phase of 91B10 (RC) Basic Medical Specialist course conducted at the Academy of Health Sciences, Fort Sam Houston, Texas” and on 13 September 1977 was awarded a primary military specialty of 91P (x-ray technician) as a result of her prior civilian training in radiology.

On 5 February 1979 the applicant was transferred to the Army Reserve Control Group (inactive) as a result of pregnancy and on 3 November 1979, at the completion of her 3 year enlistment contract, was honorably separated from the USAR.

A 21 December 1982 document from the Third ROTC Region indicated that she had applied for enrollment in a Senior Army ROTC program.  However, there are no documents contained in available files, which indicates she ever actually entered the program.

The 1997 VA rating decision indicates the applicant was granted a 100 percent disability rating effective 29 September 1995 as a result of PTSD.  She had previously been rated at 50 percent.  The VA document noted that “psychoneurotic symptoms such as fantasy, confusion, panic, and explosions of aggressive energy with disturbed thought or behavioral processes” contributed to her total incapacitation.  There is no information contained in available files, which notes the basis for the original PTSD determination.

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.

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 3 November 1979, the date the applicant was discharged from the Army Reserve.  The time for the applicant to file a request for correction of any error or injustice expired on 3 November 1982.

The application is dated 16 April 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

__cmf___  __tnk___  ___rjw__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023684	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990722	
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.