MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 October 2000                   
	DOCKET NUMBER:   AR2000043916

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz, Jr.		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		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, that his general discharge be changed to a medical discharge.  He states that because of an accident he had the year prior to entry in the service (his hand was caught in a circular saw and cut severely) he was unable to train properly.  He could not perform push-ups or pull-ups or open or release the bolt to the M1 rifle.  His commander told him he would be released from the Army.  He was given a general discharge under Army Regulation        615-369.  He just recently found out that regulation meant he was discharged for “emotional instability reaction.”  He did not have an “emotional instability reaction”.  He was unfit to perform military duties because of his hand injury and should have received a disability discharge.  He provides a statement from a witness to his accident and an extract from Army Regulation 615-369 as supporting evidence.  Counsel requests the Board’s careful and sympathetic consideration of all the evidence of record in rendering a fair and impartial 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 were lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from alternate sources.

The applicant was apparently inducted into the Army on 23 June 1949.  He was discharged on 15 September 1949 with a general discharge.  His Report of Separation is not available.  

Army Regulation 615-369 governed the discharge of enlisted men for inaptitude or unsuitability (inaptness, lack of required degree of adaptability, or enuresis).  It noted that, in addition to transient personality reactions or character and behavior disorders, lack of adaptability could be because of lack of physical stamina.  For example, it applied to those unlikely to render effective service upon return to duty by reason of likelihood or early recurrence of incapacitating symptoms from any uncontrollable cause, as a result of continued military service, but who could be returned to civilian life without likelihood of such recurrence.

Army Regulation 40-501 governs medical fitness standards for enlistment, induction and separation.  In pertinent part, it states that scars and deformities of the fingers or hand which impair circulation, are symptomatic, or which impair normal function to such a degree as to interfere with the satisfactory performance of military duty are causes for rejection for enlistment or induction.

Army Regulation 635-200 is the current regulation that sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 sets the policy and prescribes procedures for separating members who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the soldier’s initial entrance of active duty that would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and does not disqualify him or her for retention.  Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status.

Army Regulation 635-200, Chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that do not qualify for retention:  cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status.

Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, there were no provisions of law whereby an enlisted person with less than 20 years service could be retired from the Army for physical disability.  Under then existing law, compensation and pension for service connected disabilities were under the jurisdiction of the Veterans Administration.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed before 26 October 1961 or within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board 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 on 15 September 1949, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 26 October 1961.

The application is dated 23 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

__ewl___  __cjp___  __tlp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000043916	
SUFFIX		
RECON		
DATE BOARDED	20001019	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.