MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           28 November 2000                   
	DOCKET NUMBER:   AR2000042320

	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. Margaret K. Patterson 		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Wilford A. Hale		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 retirement.

The applicant states that he had meningitis while he was assigned to Beaumont, Texas.  He should have been medically retired and not discharged, because he was mentally unstable.  He states that he was bitten by a dog in November or December of 1966.  Dog bites are known to cause meningitis, for which he was diagnosed in February of 1967.  He does not think that anyone knew at the time that there would be after affects of meningitis.  The doctors at Fort Polk, Louisiana stated he could have suffered brain damage.      

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 in July 1953 and was released from active duty in July 1956.  He was ordered to active duty with a reporting date of           16 March 1959, and remained on continuous active duty until his discharge.
  
The applicant served in various assignments and in July of 1965 was assigned as a field recruiter in Beaumont, Texas.  In February 1968 he was assigned as a chief recruiter with the 8th Administrative Company in Germany.  

While assigned to Germany, on 15 October 1968 the applicant requested that he be separated from the Army 90 days prior to the expiration of his term of service (ETS).  He stated that he was a licensed pilot and had accepted employment with Flautt Flying Service, Inc. in Swan Lake, Mississippi as an agricultural pilot. He said that if his application was approved he could begin working on                1 March 1969, the beginning of the peak season.  He stated that his normal ETS was 14 May 1969 and if his request was approved he would be released on      17 February 1969 in sufficient time to relocate his family.

His request was approved on 16 October 1968.

A 28 October 1968 report of medical examination indicates that the applicant was qualified for separation with a physical profile serial of 1 1 3 3 1 1.  That report shows that he had severe arthritis of the right toe and a hearing loss in both ears.

In the report of medical history he furnished for the examination, the applicant stated that he was unable to stand for a long period of time, and that he could not climb stairs more than once within a one-day period.  That report showed that he had a swollen joint to his right toe, that he had mumps as a child, that he had headaches since meningitis in 1967, a hearing loss, hemorrhoids, and arthritis as a result of surgery to this right toe.  He stated that he would apply for disability because of his right toe when he was released from active duty.

He was promoted to Sergeant First Class on 7 February 1969, and on               13 February of that year he returned to the United States.

On 14 February 1969 the applicant signed a statement saying that there had been no change in his medical condition since his physical examination on        28 October 1968. 

The applicant was discharged on 15 February 1969 at Fort Dix, New Jersey, under the provisions of Army Regulation 635-200, for seasonal employment.  He had 12 years, 10 months, and 15 days of service.   

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.

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 15 February 1969, the date he was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 15 February 1972.

The application is dated 8 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

___jhk___  __mkp___  __wah__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000042320	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001128	
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.