MEMORANDUM OF CONSIDERATION

 THE CASE OF: 

	BOARD DATE:            15 February 2000
	DOCKET NUMBER:   AR1999027251

	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:  That his military records be corrected to reflect that he was permanently retired by reason of physical disability.  He submits no evidence or explanation with his application, although it appears he may have been retired from the Bureau of Prisons.

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:

He entered active duty on 14 August 1974 and successfully completed basic and advanced individual training prior to being assigned to Fort Campbell, Kentucky as a cargo clerk.

On 2 September 1976 the applicant was involved in a motor vehicle accident which resulted in a “cerebral contusion with coma of four days duration….”  He was ultimately determined to have mild paralysis and a formal Physical Evaluation Board concluded on 16 March 1977 that the applicant’s condition warranted placement of his name on a Temporary Disability Retired List (TDRL) with re-examination during September 1978.

On 13 April 1977 the applicant was released from active duty and his name was placed on the TDRL.  Documents concerning the applicant’s re-evaluation are not in available records.  However, a 26 March 1979, document indicates that the “PEB [Physical Evaluation Board] and USAPDA [physical disability agency] have found him fit to perform the duties of his office and grade….”  On 31 May 1979 the applicant’s name was removed from the TDRL.

There is no evidence indicating the applicant ever took steps to return to active duty.

Army Regulation 635-40, paragraph 7-2, provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, United States Code, section 1210) when it is determined that the individual's physical disability is not stable and he or she may recover and be fit for duty, or the individual's disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.

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

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 31 May 1979, the date the applicant’s name was removed from the TDRL and he was determined to be physically fit.  The time for the applicant to file a request for correction of any error or injustice expired on 31 May 1982.

The application is dated 10 June 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	AR1999027251	
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.