MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            8 February 2001                  
	DOCKET NUMBER:   AR2000048322

	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:

	Ms. Joann Langston		Chairperson	
	Mr. Donald P. Hupman		Member	
	Mr. George D. Paxson		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 records be corrected to show that he was honorably discharged by reason of physical disability.  The applicant states, in effect, that he originally received an undesirable discharge but it was subsequently upgraded to a general discharge.  However, he notes that when his discharge was upgraded that board neglected to recognize his service connected disabilities.  He states that he has been attempting to substantiate his claim for Post Traumatic Stress Disorder (PTSD) but has been unable to obtain proper documentation to prove his PTSD "due to the explosion and pertaining to Vietnam."  He notes that the "trauma of the explosion and the damage it caused no one seems to understand."

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 enlisted and entered active duty on 11 August 1967.  Information contained in his record, and provided by the applicant, indicate he was seen by medical personnel for lacerations of the scalp (from falling down the stairs) and eyelid (from being hit with the butt of a rifle on the range).  He was also treated for "acute respiratory disease and acute gastroenteritis.”  All of the treatment occurred while the applicant was undergoing basic at Fort Jackson, South Carolina.

On 16 November 1967 the applicant was diagnosed with an emotionally unstable personality which was determined to have existed prior to his entry on active duty.  In February 1968 the applicant was convicted by a special court-martial of disrespect and sentenced to three months confinement.

Although documents associated with his separation processing are not available to the Board his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was discharged under other than honorable conditions on 
8 April 1968 under the provisions of Army Regulation 635-212 for unfitness.  At the time of his separation he had 6 months and 23 days of active Federal service.  His separation physical examination noted his emotionally unstable personality but found him medically qualified for separation.

There is no evidence, and the applicant has not provided any, that he ever served in Vietnam.

On 16 July 1982 the Army Discharge Review Board upgraded the applicant's character of discharge to under honorable conditions (general discharge) noting that his personality disorder may have contributed to his misconduct.

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. 

Army Regulation 40-501 states that personality disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.  It also states that transient, situational maladjustment due to acute or special stress do not render an individual unfit because of physical disability, but rather may be the basis for administrative separation if recurrent and causing interference with military duty.

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 16 July 1982, the date the Army Discharge Review Board upgraded the applicant's character of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 
16 July 1985.

The application is dated 4 October 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

__jl____  ____dph_  __gdp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000048322	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010208	
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.