MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 April 2001                  
	DOCKET NUMBER:   AR2000048415

	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. John N. Slone 		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Barbara J. Ellis		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 and that her DD Form 214 reflect her characterization of service as honorable. 

She states that the reason for her discharge should be changed to honorable or medical, in lieu of the reason for her discharge because of physical disability prior to her entry on active duty.  She states that she is receiving a 30 percent disability rating from the VA.

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 enlisted in the Army for five years on 19 November 1991 and was assigned to Fort Jackson, South Carolina for basic training.  In February 1992 she was assigned to Fort Lee, Virginia for advanced training.    

The applicant’s medical records and the discharge proceedings are not available. However, her DD Form 214 shows that she was discharged on 31 March 1992 under the provisions of Army Regulation 635-40, chapter 5, because of a physical disability that she had prior to her entry on active duty.  Her character of service was uncharacterized.  She had 4 months and 12 days of service.

Army Regulation 635-40, paragraph 3-3, provides that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered military service.  Examples of these conditions include hereditary conditions.

Chapter 5 of that regulation provides for the separation of enlisted soldiers for non-service aggravated EPTS (existed prior to service) conditions when the soldier requests waiver of PEB (physical evaluation board) evaluation.  If the soldier is in entry level status at the time of processing, DD Form 214 may describe service as uncharacterized. 

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the early separation (within the first six months) of those individuals who were not qualified under procurement medical standards, who manifested symptoms of medical problems that would have made them not qualified under procurement medical standards or who became not qualified prior to entry.  Although a soldier in such circumstance has a right to request retention, an individual has no right to be
retained.  The retention or separation decision is within the cognizance of the appropriate discharge authority.  Except in certain extraordinary cases,
uncharacterized entry level separation is mandatory for all individuals who are in an entry level status (within the first 180 of active duty) at the time separation
processing is commenced.

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 31 March 1992, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 31 March 1995.

The application is dated 28 September 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

___bje___  ___jns___  ___clg__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000048415	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010419	
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.	110.00	
4.		
5.		
6.