MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 March 1999      
	DOCKET NUMBER:   AR1999023743

	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. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Lester Echols		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.  

The applicant states that he was only 17 years old and believes that he should be reinstated.  He was too young and immature to make mature decisions.  He states, in effect, that a stroke has left him with brain damage, that he is blind, and needs continuous care.  He has short term memory loss and loss of balance. 

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 on 29 January 1964 at the age of 17, and was assigned to Fort Polk, Louisiana, for training.  He was AWOL from 18 May to     22 August 1964, and was in confinement from 23 August to 3 October 1964.  Before a special court-martial which convened at Fort Sill, Oklahoma on             25 September 1964, the applicant was arraigned, tried, and pled guilty to the AWOL for the aforementioned period of time, and was sentenced to hard labor for six months and to forfeit $55.00 per month for six months.  The convening authority suspended that portion adjudging confinement at hard labor unless sooner vacated.

The applicant was AWOL from 8 October 1964 to 23 June 1965 and in confinement from 24 June 1965 to 21 October 1965.  Before a special court-martial which convened at Fort Sill he was arraigned, tried, and pled guilty to AWOL for the aforementioned period of time, and sentenced to confinement at hard labor for six months, and to forfeit $55.00 per month for six months.

An Army hospital clinical record shows that the applicant was admitted to the hospital at Fort Sill on 25 July 1965 and discharged on 3 September 1965 for treatment of fractures of mandible symphysis and right subcondylar area, as a result of being struck by another soldier in the post stockade.  That record indicates that his course in the hospital was uneventful, that the applicant’s mandible was mobilized and he was started on soft diet on 30 August 1965.  His fractures were stable.  He was discharged to duty on 3 September 1965, with no further treatment deemed necessary.

A 1 October 1965 report of medical examination indicates that the applicant was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, he stated that he was in good health.  

The applicant was discharged at Fort Sill on 22 October 1965 under conditions other than honorable under the provisions of Army Regulation 635-208.  He had 3 months and 24 days of service and 518 days of lost time.

The applicant’s records contain no information concerning the processing of his administrative separation.

Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were
unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history
indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included
frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking. An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority.
 
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 635-40, paragraph 1-2, in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for unfitness, except when the officer exercising general court-martial jurisdiction determines that the disability was the cause or substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing.  A copy of the signed decision of the general court-martial authority directing physical disability processing will be included with the records.

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 22 October 1965, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 October 1968.

The application is dated 10 December 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:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___mkp__  ___eja__  __le____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023743	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990325	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
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.