MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 April 2001                  
	DOCKET NUMBER:   AR2000048435

	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 his discharge under other than honorable conditions be upgraded to honorable.   

The applicant states that he was insane and mentally very ill.  He states that he has a hearing on appeal for VA benefits based on an evaluation by a doctor who states that he was insane when he committed the offenses. 

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 18 September 1980, completed training as an infantryman, and in March 1981 was assigned to an infantry unit of the     2nd Armored Division at Fort Hood, Texas.

On 23 February 1982 the applicant received nonjudicial punishment under    Article 15, UCMJ, for drunk driving.

The applicant was in confinement by military authorities from 16 September 1982 until his release on 20 October 1982. 

On 25 October 1982 the applicant signed a statement to the effect that he did not desire a separation medical examination.  A medical officer attested on that same date that the applicant’s medical records had been reviewed and determined that a medical examination for separation was not required.

The applicant was discharged on 4 November 1982 under the provisions Army Regulation 635-200, chapter 10.  The narrative reason for his discharge was that his conduct was triable by court-martial.  He had 2 years, 1 month, and 17 days of service.

The applicant’s discharge proceedings are not available; however, on                  1 February 1985 the Army Discharge Review Board considered his request to upgrade his discharge.  That review indicated that court-martial charges were preferred against the applicant on 17 September 1982 for possession, sale, and transfer of LSD and marijuana on two different occasions.  The review indicated 

that the applicant requested discharge for the good of the service, that he was advised by qualified legal counsel prior to making his request, and that he did not submit a statement in his own behalf.  The review showed that his company commander recommended approval on his request and that he be furnished an under other than honorable conditions discharge.  The separation authority approved his request.  

The Army Discharge Review Board unanimously denied the applicant’s request to upgrade his discharge. 

A 12 January 1999 VA medical report indicates that the applicant’s condition was diagnosed as schizophrenia, chronic, whose onset was while he was on active duty, and that the applcant was insane while at Fort Hood.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-40 provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial
authority who made the decision.

Army Regulation 40-501 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 635-40 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.

That regulation also provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing
evidence that he was unable to perform his 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 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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the      3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when 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 1 February 1985, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for  applicant to file a request for correction of any error or injustice expired on           1 February 1988.

The application is dated 19 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	AR2000048435	
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.  189	142.00	
2.	108.00	
3.	110.00	
4.		
5.		
6.