MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 May 1999        
	DOCKET NUMBER:   AC98-11161
				   AR1999023765

	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. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		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 or separation.  He states that “no disability rating was established” at the time of his discharge from active duty.  (Note:  He submitted no documentation to justify his claim but noted that “all evidence is in [his] active duty records.”)

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 May 1968 and successfully completed basic and advanced individual training as a finance clerk prior to being assigned to Hawaii in June 1969.

The applicant’s conduct and efficiency rating were consistently excellent and the one performance evaluation in his records indicates he was a good soldier.  He was promoted to pay grade E-5 in July 1970.

He was released from active duty on 25 January 1972 after receiving approval for a hardship discharge based on his father’s health.  He authenticated a statement on 25 January 1972 indicating there had been no change in his medical condition since his last physical examination.  His DA Form 20 (enlisted qualification records) notes he underwent a physical examination in November 1968 at which time he was given a physical profile of 1-1-1-1-1-1 and a physical classification code of “A” indicating no medical concerns or conditions.  At the time of his separation he had completed 3 years, 8 months and 25 days of active Federal service.

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.  There is no evidence, and the applicant has not provided any which confirms he had any medical conditions requiring referral for disability processing.

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 25 January 1972, the date he 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 
25 January 1975.

The application is dated 4 November 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

___gdp__  __aao___  _jea____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-11161/AR1999023765	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
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.