MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           14 December 2000                  
	DOCKET NUMBER:   AR2000042176

	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:

	Ms. June Hajjar 		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Richard T. Dunbar		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 either a physical disability discharge or an honorable discharge.

She states that she was accepted into the 872nd Medical Detachment, attended meeting and drills, passed the physical examination and went to basic training.  Her enlistment was then voided.  She was informed that she should have lied about the medical [problems].  She had no idea what happened.  She failed the flight medical examination.  She states that she served with honor and was never made aware of the voided enlistment.  She should have been informed.    

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:

An 11 September 1974 report of medical examination shows that the applicant was medically qualified for military service with a physical profile serial               of 1 1 1 1 1 1.  In the report of medical history she furnished for the examination, the applicant stated that she was in good health.  That report shows that she had minor eye surgery in January 1974; that she was hospitalized in November 1973 for six days because of a concussion/contusion she received in an automobile accident, and that she was released in satisfactory condition. 

The applicant enlisted in the Army Reserve for three years on                              30 September 1974 under the civilian acquired skills program.  Her enlistment contract shows that she was to be awarded MOS (Military Occupational Specialty) 91B20 and to be advanced to be pay grade E-4 upon completion of basic training.

On 14 January 1975, the applicant, a member of the 872nd Medical Detachment (Helicopter Ambulance) in New Iberia, Louisiana, was ordered to active duty for two weeks to attend basic training at Fort McClellan, Alabama, with a reporting date of 22 March 1975.  

On 13 March 1975 the applicant underwent a class III flight physical examination at Fort Polk, Louisiana.  The report of medical examination indicated that she had sustained a closed head injury in October 1973 and had two grand mal seizures afterward and was unconscious between 15 minutes and probably less than one hour.  That report indicated that she occasionally took valium.  The report also indicated that she failed to pass the red lens test.  The applicant was not qualified for class III flying duty.  In the report of medical history she furnished for the examination, the applicant stated that she was in good health.  That report did indicate that she had a head injury in October 1973 (contusion and seizures), that she was on medication for three months, but not on any since January 1974 and had no seizures.

Her active duty tour terminated on 6 April 1975 and she returned to her Reserve unit.

On 12 May 1975 the applicant requested that she be given an honorable discharge from the Army Reserve in view of the conditions of her enlistment.  She stated that she was enlisted under the civilian acquired skills program as an air ambulance aidman, but having failed her flight physical, she was unable to occupy the position for which she was enlisted.  Her commanding officer recommended approval of her request, stating in effect, that she could not be used in another capacity within the unit.

On 3 July 1975 the Army Reserve Components Personnel and Administration Center at St. Louis directed that the applicant’s enlistment be terminated by voiding action in accordance with the provisions of Army Regulation 135-178, paragraph 4-13.  That agency stated that a discharge certificate would not be issued, that appropriate orders would be issued by Headquarters, Fifth U.S. Army, and that a copy of her enlistment record (DD Form 4) would be marked “Void.”

On 1 August 1975 the applicant was released from the custody and control of the Army under the provisions of Army Regulation 135-178, paragraph 4-13, and her enlistment of 30 September 1974 was voided.  The applicant’s enlistment contract is over stamped with the word, “VOID.”

Army Regulation 135-178, then in effect, establishes policies and procedures for the separation of enlisted soldiers from the Army National Guard of the United States and the Army Reserve.  Paragraph 4-13 states that in those instances where a member is enlisted under conditions or terms which later appear to be erroneous and no intent to obtain enlistment under fraudulent circumstances is evident, the case with appropriate documentation and recommendations will be forwarded to the Army Reserve Components Personnel and Administration Center.  The commanding officer of that agency will make a final determination as to whether the enlistment should be validated or be terminated by voiding or formal discharge action.

Army Regulation 635-40 provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  
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 1 August 1975, the date of the order voiding her enlistment.  The time for the applicant to file a request for correction of any error or injustice expired on 1 August 1978.

The application is dated 5 May 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

___rtd___  ___hof___  ___jh___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042176	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001214	
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	142.00	
2.	110.00	
3.		
4.		
5.		
6.