MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            22 March 2001     
	DOCKET NUMBER:   AR2000045723

	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	
	Regan K. Smith		Member	
	John P. Infante		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 separation or retirement.  He states, in effect, that he received an "uncharacterized" discharge but believes he should have received a "medical" discharge.  He notes that in 1996 his physician detected a congenital problem with his hip which ultimately led to hip replacement surgery in 1999.  In support of his request he submits copies of medical documents from 1996 associated with his hip condition and a copy of the 1999 medical summary of his hip surgery.

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:

He entered active duty on 11 February 1994 and was assigned to Fort Knox, Kentucky for basic training.  With one exception, all of his aptitude scores were over 90.  While in basic training the applicant was counseled on several occasions for failing to achieve acceptable performance standards.  He was counseled regarding his lack of military bearing, failing to follow instructions, being out of uniform, being late for formation, and the importance of proper personal hygiene.  Only one counseling statement noted that he had failed a diagnostic physical fitness test.  

On 10 March 1994 the applicant was evaluated at the Troop Mental Health Clinic.  He reported a history of a learning disability related to reading comprehension, which may have been "the cause of his problems" during training.  The evaluating officer, however, concluded that the applicant was "psychologically cleared for continued training or administrative actions."  

On 30 March 1994 the applicant's unit commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200, Chapter 11 (Entry Level Status Performance and Conduct). The applicant acknowledged receipt, consulted with counsel and waived his attendant rights, including his right to a separation physical examination.

The recommendation was approved and on 18 April 1994 the applicant was discharged from active duty and his character of service was uncharacterized.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status who cannot or will not adapt socially or emotionally to military life or who have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.

Army Regulation 635-40 states 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.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. There is no evidence the applicant's hip condition, which was identified in 1996 two years after his separation from active duty, was incurred or aggravated by his military service or that it impacted on his ability to successfully maintain an appropriate level of military training.  As such there is no basis for granting the applicant a medical discharge. 

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 18 April 1994, the date the applicant was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 18 April 1997.

The application is dated 25 July 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

__sp___  ___rks__  ___jpi__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045723	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010322	
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.