MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            9 January 2001    
	DOCKET NUMBER:   AR2000048337

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 retirement or separation.  He states that he was treated for lower back pain and a left knee condition on several occasions while in the military and was scheduled for treatment at Walter Reed Army Hospital with the possibility of "board consideration."  He notes, however, that his command "intervened and hustled [him] out of the service…depriving [him] of consideration" for disability retirement or separation which was a "gross injustice which should be rectified."  He notes that the VA has awarded him a 30 percent disability rating based on his service medical records. He submits no evidence in support of his request.

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 16 April 1977 and successfully completed basic and advanced individual training prior to being assigned to Korea in September 1977. Following his tour of duty in Korea the applicant was reassigned to Fort Campbell, Kentucky where he was promoted to pay grade E-4 in February 1979. His performance evaluation report, completed in March 1979 indicates that he was ranked with the very best in the area of physical fitness.

Between May 1979 and January 1980 the applicant was punished on three separate occasions under Article 15 of the Uniform Code of Military Justice and convicted by one summary court-martial.

In February 1980 the applicant appeared before a board of officers who considered whether he should be administratively separated for unsuitability.  The board found the applicant's apathy, defective attitude and inability to expend effort constructively warranted separation and recommended he be discharged.  The recommendation was approved and on 26 March 1980 the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  It provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  

When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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 26 March 1980, the date the applicant was discharged and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
26 March 1983.

The application is dated 6 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

__mdm___  __clg___  __ena___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000048337	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010109	
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.