MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 December 2000                  
	DOCKET NUMBER:   AR2000045828

	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. Ann M. Campbell 		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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, physical disability discharge.  

The applicant states that he was discharged because of a service connected disability and not allowed to reenlist.  However, his DD Form 214 does not show that he was discharged for a disability. 

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’s personnel qualification record shows that he entered on active duty on 20 October 1976 and that he was assigned to Fort Jackson, South Carolina on 29 October 1976 for basic training.  That record shows that he received an honorable discharge on 25 October 1977, and that he was not eligible for reenlistment.

The applicant’s DD Form 214 shows that he entered on active duty on               20 October 1976 and was discharged at Fort Jackson on 25 January 1977 with an honorable characterization of service.  He had 2 months and 13 days of service.  The authority and reason for his discharge are not shown; however, his DD Form 214 shows that he had 23 days of lost time and that he was discharged in an AWOL (absent without leave) status.  

An ATZJ-S Form 359, Explanation of Separation from Service, shows that the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-39 (Trainee Discharge Program), because of marginal or non-productive performance. 

An order published on 25 January 1977 shows that the applicant was discharged in an AWOL status. 

In a 9 June 1977 rating decision the VA indicated that the applicant’s induction examination revealed bilateral exopthalamia and that he was seen on several occasions in service for subconjunctival hemorrhages in October 1976.  There was no mention of an eye injury or disease.  That decision indicated that       constitutional or developmental abnormality was not a disability under the law.

On 15 June 1977 the VA notified the applicant that service connection for his eye condition was denied. 

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 180 days of training that they lacked the necessary motivation, discipline, ability or aptitude to become effective soldiers.  This program, known as the Trainee Discharge Program, mandated the award of an honorable 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.

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 25 January 1977, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 25 January 1980.

The application is dated 14 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

___amc__  ___jam__  ___alr___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000045828	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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.