MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            5 December 2000                  
	DOCKET NUMBER:   AR2000040272

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 his rights to due process were violated when he was denied legal counsel at the time of his injury, and when he was not given the opportunity to testify before a Medical Board.  He further states that the Department of Veterans Affairs (VA) has granted him a service connected disability rating of    30 percent for his injuries and feels the Army should adopt the VA findings.  

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 Regular Army on 1 March 1978, for a period of        4 years.

On 10 March 1978, he received a temporary medical profile due to a fracture of the right clavicle, which limited him to no crawling, stooping, running, jumping, prolonged standing or marching, no strenuous physical activity, no push-ups or pull-ups, and no assignment requiring handling of heavy materials.  His initial profile was extended to 30 March 1978, and then to 21 April 1978.

The facts and circumstances concerning the applicant’s discharge are not in his available records, however, on 24 May 1978, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-7, for not meeting procurement medical fitness standards.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 2 months and 24 days of active service.

Subsequent to the applicant’s separation the VA awarded him a service connected disability rating of 30 percent, for traumatic arthritis of the right shoulder.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-7, in effect at that time, provided for the separation of personnel who did not meet procurement medical fitness standards within 4 months of the member’s initial entrance on active duty or active duty for training.  

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

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 24 May 1978, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 24 May 1981.

The application is dated 24 March 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

___amc__  ___alr___  ___jam__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000040272	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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. 142.0		
2.		
3.		
4.		
5.		
6.