MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           26 October 2000                  
	DOCKET NUMBER:   AR2000042292

	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. Melinda M. Darby		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Arthur A. Omartian 		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:  Physical disability discharge.  

He is under a medical condition that was not discovered until after his discharge. He has two service connected disabilities, for a heart attack and a shoulder condition.  His heart attack and chest pains were disregarded by his commanders as “not real” and “I should suck it up.”  I failed my physical training test, and fell out on runs on a regular basis.

COUNSEL CONTENDS:  That the applicant’s submission, in conjunction with the official Army records, amply advance the applicant’s contentions and substantially reflect the probative facts needed for equitable review (COPY OF COUNSEL’S STATEMENT ATTACHED). 

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 Army on 30 December 1991, completed training as an infantryman and was assigned to Fort Benning, Georgia for airborne training.  Upon completion of that training, he was assigned to an airborne company of the 82nd Airborne Division at Fort Bragg, North Carolina in May 1992.

A 4 December 1992 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 1.  A radiological consultation report indicates that the applicant had no active cardiopulmonary disease.  In the report of medical history he furnished for the examination, the applicant stated that he was in good health.  He indicated on that report that he had, or had had, cramps in his lower legs, a broken right wrist, an injury to his left shoulder, and recurring lower back pain, for which he had not been treated.

A 17 December 1992 report of mental status evaluation indicates that the applicant was psychiatrically cleared for administrative action. 

On 28 December 1992 the applicant’s commanding officer initiated action to discharge the applicant for misconduct-abuse of illegal drugs.  The applicant acknowledged receipt of the separation action and waived his right to consult with counsel.  His commander recommended that the applicant be discharged for misconduct and that he receive a general discharge.  On 7 January 1993 the separation authority approved the recommendation.  The applicant was discharged for misconduct – abuse of illegal drugs, on 20 January 1993.  He had 1 year and 21 days of service.

On 25 November 1998 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  On 18 March 1999 this Board denied the applicant’s request to upgrade his discharge. 

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.  

That paragraph goes on to say 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, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be
referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial
to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

The maximum punishment authorized under the provisions of the Manual for Courts-Martial for use of illegal drugs is a dishonorable discharge, confinement for two years, and forfeiture of all pay and allowances.

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 January 1993, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 20 January 1996.

The application is dated 2 April 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

___mmd_  ___aao__  ___wdp__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042292	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001026	
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.	108.00	
3.		
4.		
5.		
6.