MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 February 2000                  
	DOCKET NUMBER:   AR1999027390

	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:  In effect, the applicant requests physical disability retirement or separation.

She states that she has been disabled since 1989 and never was that way before her entry on active duty and the terrible hurricane [at her active duty location].  She was a member of the National Guard, both in New York and in Maryland.  She thought Fort Jackson would be a great place but was very hurt and developed panic and anxiety attacks because of disappointments and the hurricane.  The applicant submits 35 papers explaining her mental disabilities because of panic disorder, hypertension, and anxiety attacks, which all occurred during 1989.  She states that all her doctors have noticed her nervous condition, which resulted from her assignment to Fort Jackson.  The hurricane made it worse. 

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 enlisted in the Army National Guard for 6 years on                          1 September 1982.  She entered on active duty for training (ADT) at Fort Dix, New Jersey on 18 October 1982, completed training as a food service specialist, and was released to her National Guard unit in Hempstead, New York on          28 February 1983.  On 1 April 1984 she was assigned to the Army Reserve Control Group (Standby) at St. Louis.  She was assigned to the Annual Training Control Group on 2 April 1984 and was discharged from the Ready Reserve on 31 August 1988.

She enlisted in the Maryland Army National Guard on 2 December 1988.  

On 10 August 1989 the applicant enlisted in the Regular Army for 4 years and was assigned to Fort Jackson.

On 23 August 1989 the applicant was counseled for her failure to meet the minimum standard for the diagnostic physical readiness test.  On 25 August she was counseled for missing training and classes.  She was counseled again on     2 September for falling out of a platoon march.  The NCO who counseled her stated that she had a negative and uncaring attitude, and a lack of self discipline and motivation.  She was counseled on 18 September for missing training because of her going on sick call.  The NCO who counseled her stated that she was not motivated because of her insistence of going on sick call.  She was counseled again on 23 September because of her lack of motivation, self discipline, and because of her disruptive influence in the platoon.  She was counseled by her first sergeant on 25 September, and by her commanding officer on 26 September 1989.

On 26 September 1989 the applicant’s commanding officer notified her that he was initiating action to separate her under the provisions of Army Regulation 635-200, chapter 11, entry level status performance and conduct, because of an adjustment disorder characterized by a very poor attitude, lack of motivation, and inability to adapt to military life.

The applicant acknowledged notification of the proposed separation action, stated that she did not desire to consult with counsel, did not desire to make statements in her own behalf, and stated that she did not want a separation physical.

The applicant’s commanding officer recommended to the separation authority that she be separated from active duty.  The applicant’s battalion commander concurred in that recommendation, stating that the applicant was an unmotivated soldier, who lacked self discipline and who did not cooperate with others in her platoon.  He stated that she would not become a productive soldier and it would be in the best interest of the Army that she be discharged.

On 5 October 1989 the separation authority approved the recommendation.  The applicant was discharged on 11 October 1989, with an uncharacterized character of service. 

In a 11 June 1993 psychiatric counseling, her condition was diagnosed as someone who have been suffering with some significant illness over the past several years, with some backgrounds and histories and treatments for either major depression, severe, without psychotic features, panic disorder with agoraphobia, and a possibility that she suffered with a schizophrenic illness, chronic disorganized type.  She also had either a schizotypa personality disorder or histrionic, with some strong dependent trends.  The examining doctor stated that the severity of her psychosocial stressors seemed to be in the area of moderate to severe, with unemployment, poverty, separation from family and support systems, isolation, loneliness, and persistent long-term chronic illness in herself.  She had some inability to work and was quite illogical and obscure, and her reality testing and communication seemed to be significantly impaired. 

Other documents submitted by the applicant show that her condition was diagnosed as panic disorder with agoraphobia and depression.  In a                  29 September 1998 document a doctor in Baltimore stated that she had been diagnosed with anxiety/panic disorder, which from her history started when she was in the military in 1989.  

More documents include copies of appointment slips and visits at various clinics. One document, source unknown, indicated that the applicant was very depressed when her training for an administrative MOS was cancelled, that she suffered from the heat at Fort Jackson, that she suffered from anxiety attacks, depression, stomach pain, nervousness, insomnia, and headaches due to her disappointment (the cancellation of the administrative MOS training).  She was a victim of Hurricane Hugo and became worse after the hurricane.

In a 29 April 1999 letter, a clinical psychologist of the VA stated that the applicant had been attending psychological sessions at the mental health clinical center in Baltimore and was making progress coping with her stress and anxiety. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military
environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.  Separation will
be accomplished within 3 duty days following approval by the separation authority.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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.

Hurricane Hugo passed through South Carolina during the period                       21 to 22 September 1989.

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 11 October 1989, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 11 October 1992.

The application is dated 17 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

___kak__  ___fe____  ___ra___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999027390	
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	108.00	
2.	142.00	
3.		
4.		
5.		
6.