MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 March 2001                   
	DOCKET NUMBER:   AR2000046559

	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:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Thomas E. O’Shaughnessy		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 or separation.

The applicant states that she was wrongfully discharged, and should have been discharged for medical conditions.  She was wrongfully manhandled by an NCO, resulting in her back being broken.  She has suffered since.  Personnel in her chain of command protected the NCO.  She was admitted to the hospital at Fort Rucker on 29 June 1993 with a broken back because the NCO had thrown her in a ditch.  In December 1993 she was informed that she was being recommended for discharge for unsatisfactory performance, even though she was still undergoing physical therapy.  She is receiving a 60 percent disability rating.  The applicant describes the incident that resulted in her injury, stating that she was transported to the hospital in an ambulance, and doctors informed her that she fractured her L3 lumbar spine.  She was hospitalized for two weeks.   

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 on 17 November 1992, completed training, and in March 1993 was assigned to an engineer battalion at Fort Rucker, Alabama.

A 30 June 1994 line of duty report (DA Form 2173) indicates that the applicant was transported to the emergency room at the Fort Rucker hospital on               29 June 1993 complaining of neck and back pain.  That report shows that the applicant stated that she was thrown while being lifted onto a railroad elevation and she fell 4-6 feet into a mud filled ditch.  Her injury was determined to be in line of duty by her commanding officer, who stated that she injured her back when she was pushed into a ditch while engaged in horseplay.   

The applicant’s records show that she was counseled on 14 occasions during her period of service at Fort Rucker, both for her good performance of duty, and her not so good performance – for instance, failure to report for physical training, failure to report for duty, conduct unbecoming a soldier, disrespect to an NCO, military bearing, lack of tact, failure to perform duty, failure to follow instructions, lack of motivation, and attitude.

In a 30 December 1993 memorandum to the battalion commander, the applicant’s commanding officer indicated that the applicant had taken a large amount of kidney/liver medication, apparently because she was unhappy about an argument with her boyfriend and her pending deployment to Colombia.  That memorandum indicated that when the rescue squad arrived at her home, she at first refused treatment, but then agreed to go to the hospital.  The nurse at the hospital informed her commanding officer that she had a difficult time restraining the applicant in order to force a tube down her throat.  She was transferred to the hospital at Fort Rucker, and released from that hospital on the next day.

A 25 January 1994 report of mental status evaluation indicates that the applicant was aware that she was being separated from the Army because of a pattern of immaturity, an inability to benefit from performance counseling, and a recent suicide gesture (drug overdose).  That report indicates that when she was initially evaluated on 30 December 1993, she was diagnosed with an adjustment disorder with a depressed mood and offered supportive counseling.  Following that initial evaluation, it was determined that her risk for further self injury was low.  She was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention in the Army.  She was psychiatrically cleared for any administrative action.

A 26 January 1994 report of medical examination indicates that the applicant was qualified for separation with a physical profile serial of 2 1 1 1 1 3.  That report shows that she had a L3 fracture to her spine and was still on braces, and that she had attempted suicide.  It also shows that she had bronchitis.  In the report of medical history the applicant furnished for the examination, she stated that she was in fair health.  She stated that she had been hospitalized in 1992 for bronchitis, in 1993 for an L3 fracture to her spine, and in 1994 for attempted suicide. 

In February 1994 the applicant’s commanding officer notified the applicant that he was initiating action to separate her for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, and recommending that she receive a characterization of service as honorable.  

The applicant acknowledged receipt of the separation action, and stated that she had been advised by counsel of the basis for the contemplated action, its effects, the rights available to her, and the effect of any action taken by her in waiving her rights.  She made a statement to the effect that she had attempted suicide because of an argument with her boyfriend, which had nothing to do with the deployment to Colombia.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged.  The separation authority approved the recommendation and directed that the applicant receive an Honorable Discharge Certificate.

The applicant was discharged on 2 March 1994.  She had 1 year, 3 months, and 16 days of service.

A 19 June 2000 VA rating decision shows that the applicant’s back problems   (L4-5 herniated nucleus pulposus) which had been rated as 40 percent disabling, was increased to 60 percent effective on 2 September 1999.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely. The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

Army Regulation 40-501 provides, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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, 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.

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.

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 2 March 1994, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 2 March 1997.

The application is dated 21 August 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

___emw__  ___teo__  ___rtd___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000046559	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010315	
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.