MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 May 1999      
	DOCKET NUMBER:   AC97-06442
				   AR1999025093

	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:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry, Jr.		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, the applicant requests that his undesirable discharge be changed to a discharge for physical disability.

He states, in effect, that he was mentally ill, and was not treated for that illness while in the Army.  As a civilian, he was diagnosed as a chronic paranoid schizophrenic mental patient.  He undergoes mental health counseling and takes medicine, but will still be mentally ill for the rest of his life.  He needed to be in a mental institution since 1973.  He has been treated for mental illness for the past 18 years, has tried to earn a living, but was always fired.  He has been living off social security.  He was mentally ill when he joined the Army in 1973 and was not able to graduate because of his illness.  While he was in the Army he tried to kill himself on many occasions.  

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 served 8 months and 12 days in the Army and was discharged under other than honorable conditions on 16 June 1975.  The facts relating to his military service, to include the details concerning his discharge are contained in the 27 July 1994 decision by this Board (COPY ATTACHED) in response to his request that his undesirable discharge be upgraded to honorable.  The memorandum of consideration reflecting that decision indicates that the applicant underwent a mental health evaluation, and the results of that evaluation indicated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, was fully alert and oriented, with a good memory, and his thought process was clear and normal.

Additionally, the applicant’s company commander, in recommending approval of the applicant’s request for discharge for the good of the service, noted that the applicant, prior to his AWOL, continuously demonstrated his lack of aptitude for the military service, his lack of potential, and his immaturity.  His commander stated that he was a very inefficient and extremely slow worker, who would seldom get anything done unless he was continuously watched.  He was counseled many times.  He had no apparent reason for going AWOL, and when questioned, after his return, he stated that his “section chief was always on his case”.  His commander stated that there was no reasonable grounds for belief that the applicant was mentally defective, deranged, or abnormal.

In January 1995 the applicant requested reconsideration of the decision to deny his application to upgrade his discharge to honorable.  He stated that he had been a good person all his life, and that clemency was warranted.  Under current standards he could not have received an undesirable discharge.  His conduct and efficiency ratings, behavior and proficiency marks (while in the Army) were good, or pretty good.  He received awards and decorations and had combat service.  His promotion record showed he was a good soldier.  He was so close to finishing his tour that it was unfair to give him a bad discharge.  He had a clean record.  His ability to serve was impaired by his youth and immaturity, his low aptitude scores and his level of education, and his deprived background.  Personal problems, financial problems, use of drugs and use of alcohol impaired his ability to serve.  He had psychiatric problems.  He tried to serve, but just was not able to.  His command abused its authority.  He applied for a hardship discharge, but it was unfairly denied.

On 30 June 1995 he was informed that in his request for reconsideration he had not provided any new material sufficient to establish error or injustice, and his request was not considered by the Board.

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 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  However, if the
officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence,
the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial
authority who made the decision.
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 16 June 1975, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 16 June 1978.

The application is dated 6 February 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

__emw__  ___hof__  ___mvt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC97-06442/AR1999025093	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990520	
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. 108.00		
3.		
4.		
5.		
6.