MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            5 October 2000
	DOCKET NUMBER:   AR2000043623

	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:

	Shirley Powell		Chairperson	
	Elzey J. Arledge		Member	
	Jaime Perez		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.  She notes that her medical condition has been traced to her service in Southwest Asia and that she was granted a 100 percent disability rating by the VA retroactive to her separation date from the Army.  She also notes that she was sexually assaulted while at Fort Sam Houston, Texas and that if her chain of command had been fully aware of her condition she would have been medically retired rather than merely discharged.  In support of her request she submits a copy of her VA rating decision.

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:

She was a member of the Army National Guard between February 1977 and July 1979 and on 16 October 1979 enlisted in the Regular Army and entered active duty.  

The applicant served successfully until 30 August 1992 when she was voluntarily released from active duty in pay grade E-6 under the Army's Enlisted Voluntary Early Transition Program.  As a result of her voluntary separation she received more than $41,000 in separation pay.

Her DA Form 2A (Automated Personnel Qualification Record), prepared on 
26 May 1992 shows the applicant with a physical profile of 1-1-1-1-1-1 and a physical category code of A indicating the applicant had no physical conditions which limited her ability to fully perform her military duties.  Her performance evaluation reports indicated that she consistently passed the Army’s physical fitness test, including a test administered in May 1992.

In 1998 the VA retroactively awarded the applicant a 100 percent disability rating based on Post Traumatic Stress Disorder.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, she must be unable to perform the duties of her office, grade, rank or rating.  Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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, 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 30 August 1992, the date the applicant was released from active duty and authenticated her DD Form 214.  The time for the applicant to file a request for correction of any error or injustice expired on 
30 August 1995.

The application is dated 8 June 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

___eja__  ____jp__  ___sp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000043623	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
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.