MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:           

	BOARD DATE:           23 February 2000                  
	DOCKET NUMBER:   AR1999028540

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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, physical disability discharge.

The applicant states that he served in the National Guard from 1976 to 1978 and was activated on 27 April 1978, serving until 14 February 1979.  He was on active duty at Fort Campbell, Kentucky with the 101st Airborne Division when he was injured by a simulator grenade, causing a compound fracture to his right ankle.  His right ankle was placed in a cast for three to four months, and he walked with a limp after the cast was removed because the fracture did not properly heal.  He was in constant pain, and had problems because his platoon sergeant felt that he was faking.  His problem with his platoon sergeant took a mental toll on him and he began to see a psychologist.  After reviewing the situation, the psychologist asked him if he wanted to stay in the Army or be discharged.  He stated that he could not perform his duties because of the constant pain in his ankle; and the doctor then assured him he would receive an honorable discharge with full benefits.  He was discharged with a 10 percent disability rating, which has been increased to 20 percent.  The accident caused him to walk with a cane and wear a leg brace after his discharge; and because of his reenlistment code, he cannot reenlist in the Army.  

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                         10 January 1976.  He completed active duty for training at Fort Benning, Georgia and was returned to his National Guard unit on 9 July 1976.  On 26 April 1978 he was discharged from the Pennsylvania Army National Guard under honorable conditions, because of his order to active duty as a Reservist.  His record shows that he was ordered to active duty because of his failure to participate satisfactorily in unit training assemblies.  

In May 1978 the applicant was assigned to an infantry unit at Fort Campbell, Kentucky.

On 11 September 1978 the applicant received nonjudicial punishment under Article 15, UCMJ.

On 30 November 1978 the applicant was arraigned, tried, and convicted by a summary court-martial for two counts of failure to go to his appointed place of duty, disrespect to an NCO, and failure to obey a lawful general regulation.  He was sentenced to be confined at hard labor for 30 days.  That sentence was approved and ordered executed.

The applicant, then in confinement, was assigned to the Army Retraining Brigade at Fort Riley, Kansas.

The applicant’s conduct and performance of duty while assigned to the retraining brigade were completely unsatisfactory, other than that shown on his                 27 December 1978 trainee progress report.  Trainee progress reports show that the applicant committed numerous infractions and violations of rules.  He was counseled on numerous occasions, and a cadre review board indicated on         26 January 1979 that the applicant had received unsatisfactory ratings for the first two weeks of training.  That board indicated that the applicant was a manipulator, did not accept responsibility for any of his actions, made excuses for his mistakes, and blamed everyone else for his mistakes.  He was hostile and disrespectful, loud and immature, and if returned to duty would get into more trouble.  The board recommended that the applicant be eliminated from the Army.

A 5 February 1979 social work evaluation indicates that the applicant’s performance in the retraining brigade was very unsatisfactory, and was typified by his repeated failure to follow instructions and by security violations.  He was interviewed on 1 February by a mental health activity psychiatrist.  His condition was described as inadequate and obsessive-compulsive personality, chronic, severe, with ingrained patterns of rigid, defensive behavior.  That doctor stated that he was not expected to adapt or conform to military life, and he was not appropriate for further rehabilitation.  He recommended that the applicant be separated because of unsuitability.
 
On 7 February 1979 the applicant consulted with counsel and requested a medical waiver on his physical examination prior to his discharge. 

On 8 February 1979 the applicant consulted with counsel and acknowledged that he had been advised of the basis of the contemplated action to separate him from the Army for unsuitability under the provisions of Army Regulation 635-200, chapter 13, its effect, of the rights available to him, and the effect of any action in waiving those rights.  He waived consideration of his case by a board of officers and declined to submit statements in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged because of unsuitability – personality disorder.  The applicant’s battalion commander concurred in that recommendation, stating that the applicant was totally inadequate and lacked the ability of basic social control due to past patterns of rigid behavior.  On 13 February 1979 the separation authority approved that recommendation and directed that the applicant receive an Honorable Discharge Certificate.  He was discharged on     14 February 1979.  He had 8 months and 26 days of service and 22 days of lost time. 

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.  It provided for the separation for unsuitability of those individuals because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations is no bar to discharge for unsuitability.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 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.

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 14 February 1979, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 14 February 1982.

The application is dated 28 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

___rjw___  ___eb___  ___rvo__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999028540	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
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.