MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            4 May 2000                  
	DOCKET NUMBER:   AR1999023987

	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.  

	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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.  The applicant states that he was in a car accident in Hawaii in early 1976 while still in the military; that he was admitted to Hawaii State Mental Hospital and then shipped to Tuscaloosa VA hospital.  In support of his request the applicant submits a copy of two Hospital Summaries from 19 March 1977, and 3 December 1977, a History and Physical Examination from 8 December 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:

On 26 August 1971, he enlisted in the Regular Army for a period of 4 years.

The applicant served in Vietnam from 17 September 1969 to 22 May 1970, and in Hawaii from 26 January 1974 to 15 April 1977.

On 19 December 1975, the applicant requested a waiver to the education requirement in order to reenlist for a period of 3 years.

On 27 February 1976 his waiver request was denied.  However, authority was granted to permit the applicant to extend his enlistment for a period of seven months to satisfactorily complete the education requirement.

On 6 May 1976, a Statement of Medical Examination and Duty Status revealed that on 14 April 1976, the applicant was involved in an automobile accident when his car went out of control and ran off the road causing him minor injuries.  The injury was considered to be in the line of duty.

On 30 April 1976, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 2.  His Report of Separation indicates he had 4 years, 8 months and 4 days of creditable service.

Army Regulation 40-501, paragraph 3-3a, provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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 and 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 30 April 1976, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 30 April 1979.

The application is dated 18 February 1999 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

___lls___  ___jps___  ___cj____  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999023987	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000504	
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.		
3.		
4.		
5.		
6.