MEMORANDUM OF CONSIDERATION

           IN THE CASE OF:   

	BOARD DATE:           9 February 2000
	DOCKET NUMBER:   AR1999028313

	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 Gale J. Thomas 		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr. 		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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 or separation.  The applicant states that he was not given a discharge physical, that he was discharged directly to a VA hospital, and was never evaluated for a disability separation for the disabilities he had and continues to have today.  In support of  his request the applicant submits copies of a portion of his clinical records.    

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 7 June 1965, he was inducted into the Army of the United States for a period of 2 years.  He completed basic training at Fort Polk, Louisiana, and was trained as a memorial activities specialist at Fort Lee, Virginia. 

On 9 May 1966, he accepted nonjudicial punishment  under the provisions of Article 15, Uniformed Code of Military Justice, for being disrespectful to a commissioned officer, being disorderly, and disobeying a lawful order.  His punishment was a forfeiture and reduction to pay grade E-2.

The applicant served in the Republic of Vietnam from 1 June 1966 to 25 April 1967.

During October 1966, while in Vietnam, the applicant received a summarized Article 15 for disobeying a lawful order, and was punished with extra duty; and a summary court-martial for resisting arrest, with a sentence of reduction to pay grade E-1, a forfeiture and restriction.   

Upon his return to the states the applicant was hospitalized at Darnall Army Hospital, Fort Hood Texas, for venereal warts.

On 19 May 1967, a physical evaluation cleared the applicant for separation.

On 22 May 1967, the surgical clinic at Darnall Army Hospital noted that no surgery was indicated; and further cleared the applicant for separation.  

On 13 June 1967, the applicant was released from active duty and transferred to the Reserves to complete his service obligation.  His Report of Separation indicates he had 2 years and 7 days of creditable service.

On 6 June 1971, he was honorably discharged from the Reserves for expiration of term of service.

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.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

The applicant’s continued performance of duty until his release from active duty on 13 June 1967, and his discharge from the Reserves on 6 June 1971, raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

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 13 June 1967, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 13 June 1970.

The application is dated 18 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

___rvo__  ___dsj__  ___cjs____  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999028313	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000209	
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	110.00	
2.		
3.		
4.		
5.		
6.