MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

	BOARD DATE:           24 February 2000                      
	DOCKET NUMBER:   AR1999024104

	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:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. James P. Huber		Member	
	Ms. Margaret V. Thompson		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 he should have received a medical discharge for an aggravated    pre-existing condition, which the Army was aware of when they accepted him into the military.  In support of his request the applicant submits copies of his DD Form 214 (Report of Separation), insurance forms, his honorable discharge certificate, and letters of support from his wife and sister.

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 12 April 1972, he enlisted in the Regular Army for a period of 3 years.  

While attending basic training at Fort Jackson, South Carolina, he was hospitalized for a knee injury, and subsequently separated.

The facts and circumstances pertaining to the applicant’s discharge are not in the available records.  The Report of Transfer or Discharge (DD Form 214), indicates that the applicant was discharged on 18 May 1972, under Army Regulation 635-40, chapter 9, for physical disability which existed prior to service.  His Report of Separation indicates he had 1 month and 19 days of creditable service.  

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of a physical disability., Chapter 9, in effect at the time, provided for the expeditious discharge of members for disabilities existing prior to service (EPTS).  A member will be discharged under this chapter when a medical board has found that he is medically unfit for retention on active duty, and his unfitness is considered to be the result of a disability which has no connection with the member’s military service.  The applicant was discharged during basic training for a disability which occurred prior to his entry on active duty.

Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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 18 May 1972, the date of his discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 18 May 1975.

The application is dated 19 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

___cla___  ___jph___  ___mvt__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999024104	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000224	
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. 328	110.00	
2.		
3.		
4.		
5.		
6.