MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           31 May 2000                   
	DOCKET NUMBER:   AR2000039421

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelly		Member	
	Mr. John P. Infante		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, the applicant requests that his under other than honorable conditions discharge be upgraded to honorable, and that he be awarded physical disability retirement. 

He states that his discharge was erroneous, not properly initiated, his disability was not rated, and there was no hearing nor counsel.  He stated that he did not receive a mental status evaluation, and the rehabilitative requirements were not met nor waived.  His discharge was too harsh.  He did not receive a clemency discharge, and his discharge was arbitrary and capricious.  His Armed Forces Qualification Test (AFQT) at induction was too low.  

He states that he injured both knees in early 1976 while on a training exercise, went on sick call, and was accused of malingering.  He suffered constant pain, and sought medical attention after transferring to his permanent duty station at Fort Stewart, Georgia.  However, he was told there was nothing wrong with him.  He has since seen several doctors who attest to his condition.  His condition was noted at the time of his separation; however, he never received a rating for his disability, which has worsened.  He has shown that his injury was 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:

The applicant entered on active duty on 13 December 1975, completed training at Fort Leonard Wood, Missouri and in April 1976 was assigned to an air defense artillery battery at Fort Stewart, Georgia.  He remained at Fort Stewart until his discharge in 1977.

On 9 February 1976, the applicant received nonjudicial punishment under     Article 15, UCMJ, for stealing property from the Fort Leonard Wood post exchange. 

Medical records show that the applicant was treated on 12 May 1976 and           3 June 1976 because of knee pain, and 10 June 1976 because of problems with his legs.  He was seen on 7 September 1976 because of leg pain and on          19 November 1976 because of knee pain.    

A 7 September 1976 sick slip shows that the applicant was placed on quarters because of left knee problems.

On 10 September 1976, the applicant received nonjudicial punishment for wrongfully altering a sick slip with intent to deceive.

On 19 November 1976 the applicant received a temporary profile because of problems with his knee.

On 20 September 1976 the applicant was counseled for misconduct involving a BB pistol and a sentry on duty. 

On 23 November 1976, the applicant received nonjudicial punishment for hitting a fellow soldier with his fist.

The applicant was treated for pain to his knees, legs, feet, and/or ankles on nine separate occasions from January through July of 1977, and received temporary profiles on three occasions because of knee pain.

On 10 January 1977 the applicant was counseled for missing formation.

On 4 February 1977, the applicant received nonjudicial punishment for threatening to injure an NCO, and for disrespect to an NCO.

On 2 March 1977, the applicant received nonjudicial punishment for failure to obey a lawful order. 

On 7 March 1977 the applicant was counseled for missing his extra duty assignment.

The applicant was counseled on 16 March 1977 for shouting obscenities during formation and for disrespect to an NCO.

On 23 May 1977 the applicant received a letter of admonishment from his commanding officer because of his non performance of his military duties. 

On 17 June 1977, the applicant received nonjudicial punishment for wrongful possession of marijuana. 

On 12 August 1977, the applicant received nonjudicial punishment for failure to go to his place of duty. 

On 26 August 1977 the applicant’s commanding officer informed the applicant that he was recommending that the applicant be discharged under the provisions of Army Regulation 635-200 for misconduct because of wrongful possession of marijuana, failure to go to his place of duty, assault, and falsification of a sick slip. The applicant consulted with counsel, stated that he understood the basis of the contemplated action, its effects, the rights available to him, and any action taken by him in waiving his rights.  He waived consideration of his case by a board of officers.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  He submitted a statement to the effect that he realized that he had made mistakes, but felt that if he was given another chance he would be a good soldier.  He stated that he had problems at home for the past year, and being so far away made him act the way he did.

A 30 August 1977 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He met the medical standards for retention in the Army.

A 30 August 1977 report of medical examination indicates that the applicant was medically qualified for separation.  The applicant stated that he was in good health as far as he knew, except for his knees.

On 3 October 1977 the applicant’s commanding officer recommended to the separation authority that the applicant be eliminated from the Army for misconduct under the provisions of Army Regulation 635-200,                paragraph 13-5a(1).  That official stated that the applicant had resisted all efforts of rehabilitation, stated that the applicant had been counseled on five occasions, and recommended a waiver of the requirement for rehabilitation because further duty would be inappropriate because the applicant was obviously resisting all rehabilitation attempts, and that rehabilitation would not produce the quality soldier desired by the Army.

The separation authority waived the requirement for rehabilitation and approved the recommendation for discharge.  He directed that the applicant be furnished a discharge certificate under other than honorable conditions. 

The applicant was discharged on 8 November 1977.  He had 1 year, 10 months, and 26 days of service, and 8 days of time lost because of excess leave.

On 1 March 1982, in a unanimous opinion, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

Army Regulation 635-200, then in effect, provides for the separation of enlisted soldiers from the Army.  Paragraph 13-5a(1) states that a solider is subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  Paragraph 13-9 states that the general court-martial convening authority may waive the rehabilitation requirements when he determines that the individual is obviously resisting all attempts to be rehabilitated or that rehabilitation will not produce the quality soldier acceptable in the baseline force.  Paragraph 13-31 states that an individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

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 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 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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 1 March 1982, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on           1 March 1985.

The application is dated 29 December 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

___sk___  ___jev___  ___jpi___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000039421	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000531	
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.  360	142.00	
2.	108.00	
3.	110.00	
4.		
5.		
6.