MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 December 2000                  
	DOCKET NUMBER:   AR2000046791

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his earlier appeal to correct his military records by showing he was separated due to physical disability.

APPLICANT STATES:  In effect, that the schizophrenia from which he now suffers manifested itself before the discharge as evidenced by his violent behavior.  He includes a newspaper article about him shooting a neighbor in Colorado.  He reports this happened in 1980.  He also states that he was mentally incapacitated for years and that his Korean wife did not know how to get him help.  She fed him when he was incapacitated.  He got so heavy that he lived on the floor.  He includes recent civilian medical records showing that he was admitted to the hospital following a 1995 drug overdose taken in a reported suicide attempt.  At that time, he was known to be schizophrenic and cocaine dependent.  He reported a 10 to 15-year history of mental disorder.  He suffers from hypertension and has had a heart attack.  The VA has awarded him a disability compensation award of 100 per cent for hypertension.  Except for the years 1984, 1985 and 1986; Social Security Administration records show that since his discharge the applicant’s reported earnings were only a few hundred dollars per year.

COUNSEL CONTENDS: Counsel forwarded additional evidence, but offered no argument beyond that submitted by the applicant.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999026008) on 19 January 2000.

The applicant’s submission is new evidence that requires Board consideration.

Army Regulation 635-40, paragraph 3-2b(1), provides 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.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no medical evidence that; at the time of the discharge or the behavior that led to the discharge; the applicant was so disabled by psychiatric, psychological, emotional or mental problems that he could not both tell right from wrong and adhere to the right.  In the absence of such evidence, the assertion that he was mentally ill neither demonstrates an error or an injustice in the discharge nor entitle the applicant to physical disability separation.   
 
2.  The applicant’s service was not interrupted by physical disability.  He was not eligible for physical disability processing.

3.  Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looks at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is no basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document may not state that the Board considered the merits of the case, the display of the pertinent details of the applicant’s service record, the circumstances of the case and the regulations governing the issue tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 years.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__FNE__  __LEM__  ___HBO__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046791	
SUFFIX		
RECON		
DATE BOARDED	20001012	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	10804	
2.		
3.		
4.		
5.		
6.