MEMORANDUM OF CONSIDERATION 

	IN THE CASE OF:   

	BOARD DATE:            15 February 2000      
	DOCKET NUMBER:   AR1999025560

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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 in lieu of disability separation.  She states that at the time of her separation she should have been medically retired and that she was not aware that she could request a change.  The applicant submits no evidence in support of her request.

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:

She was a member of the USAR when she sustained an injury to her back during a training exercise in June 1984.  As a result of her injuries a Medical Evaluation Board concluded on 24 December 1985 that she was medically unfit for further military service and referred the applicant to a Physical Evaluation Board.

A formal Physical Evaluation Board (PEB) found on 15 May 1986 that the applicant’s “chronic subjective low back pain with sciatic nerve involvement and affecting bowel and bladder function, rated as with muscle spasm” rendered her unfit and recommended that she be discharged with entitlement to disability severance pay with a 20 percent disability rating.  In spite of the applicant’s objections the formal PEB was approved and on 4 September 1986 she was honorably discharged from the USAR with entitlement to disability severance pay.  There is no evidence, nor has the applicant provided any, which confirms that she was entitled to a higher disability rating.

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 4 September 1986, the date the applicant was discharged from the USAR with entitlement to disability severance pay.  The time for the applicant to file a request for correction of any error or injustice expired on 4 September 1989.

The application is dated 1 April 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

__fe____  ____ra__  ___kak_  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025560	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000215	
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         1.177	142.00	
2.		
3.		
4.		
5.		
6.