MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR2000037981

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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.  He states that he believes an injustice occurred when he was not granted "medical disability for kidney problems…and [his] kidney problem was not established as service connected."  In support of his request he submits extracts from his Medical Evaluation Board (MEB) and a 1984 Board of Veterans Appeal proceeding which determined his "renal disease" was not service connected.

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:

He was a member of the U.S. Army Reserve (USAR) when he was involuntarily ordered to active duty in December 1975.

In July 1977 a MEB found the applicant suffered from "chronic glomerulonephritis" and recommended referral to a Physical Evaluation Board (PEB).  An informal PEB, convened on 16 August 1977, concluded that the applicant’s "urinary protein levels are abnormal and constant; however, his physical condition is otherwise good and without apparent limitations."  The PEB found him fit for continued military service.  The applicant concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.

On 20 October 1977 the applicant was honorably discharged at the conclusion of his military service after having been retained beyond his originally scheduled separation date in order to complete his disability processing.

On 6 July 1984 the Board of Veterans Appeals (BVA) appears to have concluded that the applicant’s chronic kidney disease was not present during service or within one year of separation and was therefor not considered service connected.  The BVA documents provided by the applicant are not complete nor were there any service medical records available to the Board.

Army Regulation 635-40 states 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.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

The Army rates only conditions determined to be physically unfitting, because they adversely effect the individual’s ability to perform assigned duties, thus compensating the individual for loss of a career.  The VA, on the other hand, may rate any service-connected impairment, in order to compensate the individual for loss of civilian employability or social functioning.  The determination that an injury or illness is “service-connected” is strictly within the jurisdiction of the VA and the Army may not dictate to the VA regarding such determinations.

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 20 October 1977, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 20 October 1980.

The application was postmarked in February 2000 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

___st___  __jea___  ___reb__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000037981	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
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.	142.00	
2.		
3.		
4.		
5.		
6.