MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      .   

	BOARD DATE:           15 February 2000                   
	DOCKET NUMBER:   AR1999026967

	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. Kenneth H. Aucock 		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:  Restitution from the Army from 1970 to 1997. 

The applicant states that he was not briefed on his illness when he was discharged.  He was a veteran and was not informed that he could receive benefits from the VA.  There were no indications in his record.  He requests compensation from the Army from 1970 to 1997 because there was no briefing in his records that might have told his parents that he could get help from the VA.  He was too sick to do it himself.  The Army was negligent in not putting that information in his records and in not briefing him.

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 was inducted into the Army on 13 August 1970 and was assigned to Fort Polk, Louisiana for training.  In a 17 September 1970 request, the applicant’s company commander requested that the applicant be recycled to the special training company, recommending a change of environment because of the applicant’s emotional state.  In that request, the applicant’s company commander indicated that the applicant had been on sick call four times, and had shown a definite failure to adapt to a military environment.  He indicated that the applicant was pending a discharge because of medical reasons.

On 26 October 1970 the applicant requested discharge because of erroneous induction under the provisions of Army Regulation 635-200, paragraph 5-9.  He stated that he did not meet the induction standards at the time of his induction.

An undated Fort Polk endorsement shows that the separation authority approved the applicant’s discharge apparently based on a recommendation by a medical board.  The applicant was discharged on 4 November 1970.  He had 2 months and 22 days of service.

On the same date of his discharge the applicant signed and initialed a              DA Form 664 (Serviceman’s Statement Concerning Application for Compensation from the VA).  That form states:  “Each officer and enlisted person being processed for separation from active military service for any reason who has undergone prolonged hospitalization, or suffered from wounds, injury or disease while in service, is advised to apply for compensation from the Veterans Administration by completing VA Form 21-526e.  Each individual who has a physical defect when he entered the service which he feels was aggravated by military service should file VA Form 21-526e.  You are further advised that, if you do not apply for compensation from the Veterans Administration by completing VA Form 21-526e at the time of separation, you may do so at any time thereafter; that, if you do intend to file, it is advisable to do so before you leave the service as at that time your medical records are more easily obtainable and action by the Veterans Administration on your claim will be expedited thereby; and that filing VA Form 21-526e will in no way delay your separation.  When you have read the above paragraph, place your initials at the end of this sentence.”  The applicant placed his initials thereto.                      

That form went on to say, “I am being processed for separation from the Army and have been advised that I am entitled to file an application from the Veterans Administration.”  He checked the block stating, “I have decided not to file an application for such compensation at this time.  I understand that I may do so at a later date.”  

Army Regulation 635-200 provides for the separation of enlisted soldiers.  Paragraph 5-9 of that regulation, then in effect, states that individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within 4 months of the member’s initial entrance on active duty, which would have permanently disqualified him for entry into the military service had it been detected at that time; and does not disqualify him for retention in the military service under the provisions of chapter 3, AR 40-501.   

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 November 1970, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 4 November 1973.

The application is dated 14 May 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

___kak__  ___fe____  ___ra___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999026967	
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.	108.00	
3.	128.00	
4.		
5.		
6.