MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            11 July 2000                  
	DOCKET NUMBER:   AR1999027607

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. John Saputo		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 honorable discharge for physical disability without disability benefits be changed to include disability benefits.  The applicant states that his disability was triggered by active duty.

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:

On 17 March 1976, he enlisted in the Regular Army for a period of 4 years. 

On 2 February 1977, a Physical Evaluation Board (PEB) determined that the applicant was unfit for continued military service because of manic depressive illness, which existed prior to service (EPTS), and was not aggravated by service.  The PEB recommended separation without entitlement to disability.   

The applicant’s Medical Evaluation Board (MEB) proceedings are not in his available records.

On 4 February 1977, the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing.

On 10 February 1977, the PEB’s recommendation was approved and on             23 February 1977, the appropriate separation authority directed his immediate discharge under the provisions of Army Regulation 635-40, Chapter 4, without severance pay. 

On 8 March 1977, the applicant was honorably discharged under the above cited regulation.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 11 months and 22 days of active service. 

Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital, and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.

Army Regulation 635-40 also provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated without entitlement to benefits.

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 8 March 1977, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 8 March 1980.

The application is dated 7 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

___rjw___  __js_____  __ra____  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999027607	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000711	
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.  108.00		
2.		
3.		
4.		
5.		
6.