MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            27 June 2000
	DOCKET NUMBER:   AR2000041045

	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. Mark d. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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.  He states, in effect, that his profile indicated that he was "permanently disabled" and as such should have been medically retired rather than separated under other than honorable conditions.  In support of his request he submits a copy of his physical profile and several letters from friends and community members attesting that he is a good citizen and active member of his local community.

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 enlisted and entered active duty on 23 January 1968 and was assigned to Europe following completion of basic and advanced individual training.  While in Germany he was punished on two separate occasions under Article 15 of the Uniform Code of Military Justice (UCMJ) for minor disciplinary infractions.

In January 1970, while enroute to Vietnam, the applicant departed AWOL.  Documents in his records indicate he was seen by medical personnel in March 1970 (while in an AWOL status) and issued a permanent profile for "Scheurmann's Disease” a relatively common condition in which backache and kyphosis are associated with localized changes in the vertebral bodies.  The applicant’s profile prohibited crawling, stooping, running, jumping, prolonged standing or marching and no assignment requiring prolonged handling of heavy materials including weapons.  No overhead work, pull-ups or push-ups.  The profile notes that he was medically qualified for duty with limitations.  His records indicate he returned to military control in May 1970 and departed AWOL again on 10 June 1970.  In August 1970 he returned to military control only to depart AWOL for a third time in October 1970.  The applicant was apprehended by civilian authorities and returned to military control in September 1974.

On 28 September 1974 the applicant, after consulting with counsel, voluntarily requested discharge for the good of the service under the provisions of Presidential Proclamation Number 4313.  His request acknowledged that he would receive an under other than honorable conditions discharge and that such a characterization would deprive him of all service benefits, including benefits administered by the VA.  He also acknowledged that he was "ready to serve in whatever alternate service [his] country may prescribe for [him], and pledged to complete faithfully a period of 20 months' service."

The applicant was discharged on 28 September 1974 with more than 1600 days of lost time.
On 28 March 1975 the applicant was terminated from the "Reconciliation Service Program" because he did not complete his required period of alternate service.

In March 1982 the Army Discharge Review Board unanimously denied the applicant's petition to upgrade his discharge.

Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford.  It identified three categories of persons and permitted them to apply for a clemency discharge.  Those categories were: 

    1) civilian fugitives who were draft evaders,
    2) members of the military who were still AWOL, and
    3) former military members who had been discharged
       for desertion, AWOL or missing movement.

Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial.  For those who elected to earn a clemency discharge, (AWOL's and discharged members) they could be required to perform up to 24 months alternate service.  Upon successful completion a clemency discharge would be issued.  (NOTE:  In any event, the clemency discharge did not affect the individual's underlying discharge, and did not entitle him to any VA benefits.)

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 reasonable perform because of a physical disability incurred or aggravated in service. 

Army Regulation 635-40 also states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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 in March 1982, the month in which the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. The time for the applicant to file a request for correction of any error or injustice expired in March 1985.

The application is dated 1 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

___mdm__  ___wtm__  __clg___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000041045	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000627	
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.