MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           16 March 2000                  
	DOCKET NUMBER:   AR1999028674

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:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. Christopher J. Prosser		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:  Physical disability discharge.  

The applicant states that while he was on active duty a psychologist told him that he would be discharged if he kept taking Zanax.  It stopped taking it and has become more ill. 

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 served in the Army Reserve from December 1986 to May 1991.  He completed training as a cannon crewman at Fort Sill, Oklahoma on               24 April1987.

The applicant enlisted in the Army for four years on 7 May 1991, completed a petroleum supply specialist course and a petroleum vehicle operator course.  He received a certificate of achievement on 9 May 1991 and a certificate of achievement on 11 October 1991 while stationed at Fort Lee, Virginia.  Assigned to a quartermaster and supply company in Germany, he received a certificate for meritorious achievement in April 1992, a certificate of appreciation in October 1992, and two more certificates of achievement, one in January 1993 and one in July 1993.  

A 14 March 1995 physical profile record shows that the applicant had a temporary physical profile serial of 1 1 2 1 1 1 because of chronic foot pain.

 The applicant has been awarded the Army Commendation Medal, the Good Conduct Medal, and two awards of the Army Achievement Medal, among others.  The applicant was discharged at Nuernberg, Germany on his separation date (ETS) of 6 May 1995. He had 4 years of active duty.  

The applicant enlisted in the Army Reserve for one year on 5 May 1995.  He served on active duty for four days in May 1995 to provide maintenance support. 

In a 15 May 1995 request for servicemen’s group life insurance (SGLI), the applicant stated that he had been treated for anxiety disorder, and said in effect to see his ETS physical examination.

The applicant’s DA Form 2A shows his physical profile serial as 1 1 1 1 1 1.  He signed that form on 16 September 1995, attesting to its accuracy. 

He completed annual training for 12 days at Fuerth, Germany in September 1995, for which he received an Army Achievement Medal.

The applicant was reassigned to the Army Control Group (Reinforcement) on      1 November 1995 and discharged from the Army Reserve on 1 October 1996.

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 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

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, 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 6 May 1995, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 6 May 1998.

The application is dated 1 July 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

___jlp___  ___owt___  ___cjp__  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999028674	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
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.