MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            21 December 2000                  
	DOCKET NUMBER:   AR2000048584

	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:

	Ms. Karol A. Kennedy 		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Gail J. Wire 		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, physical disability retirement or separation.

The applicant states that he injured his back doing physical training in 1977; however, his medical records failed to indicate his back injury, because all that he had was an x-ray examination.  He has had back pain for years.  He now has lupus.      

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 three years on 6 July 1977 and was assigned to Fort Leonard Wood, Missouri for training.  

An 18 July 1977 counseling form shows that the applicant failed to follow instructions in several areas, that his area was not ready for inspection, that he stayed up after lights were out, and that the applicant did not desire to complete training or stay in the Army.  The form indicated that he resented authority and lacked discipline.  He was counseled by his company commander on two occasions.  On 26 July 1977 the applicant received nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful order.  On 28 July 1977 the applicant’s company commander stated that the applicant had shown no improvement since his initial counseling session, his performance and resentment of authority had worsened, he lacked notification and self discipline, and he was a disruptive influence on the rest of the company.  He recommended that the applicant receive an expeditious discharge. 

On 28 July 1977 the applicant’s company commander notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-39, the trainee discharge program.  The applicant acknowledged notification of the proposed action, stated that he did not desire to make a statement or submit a rebuttal in his own behalf, stated that he did not desire to have a separation medical examination if the discharge was approved, and stated that he did not desire to have a counsel assist him in explaining the discharge procedures or in making statements in his behalf.  

The applicant’s company commander recommended to the separation authority that the applicant be discharged under the provisions of the trainee discharge program.  The intermediate commander concurred in that recommendation, stated that the applicant had attempted to go AWOL, and that efforts to place him in correctional custody were stymied because of a medical profile for a rash on his legs.  The separation authority approved the recommendation on                  29 July 1977 and directed that the applicant receive an honorable discharge.   

The applicant was discharged on 29 July 1977.  He had 24 days of service.

Medical documents from the Cobb Medical Park in Phenix City, Alabama show that the applicant was treated for a herniated nucleus pulposus, L5-S1, and that he had a L5-S1 diskectomy on 23 September 1987.  He was discharged from the hospital on 28 September 1987. 

A 22 July 1999 document from a VA staff physician indicated that the applicant was being treated for several medical problems, to include chronic low back pain and cervical pain.  That physician stated that the applicant was disabled.
In a 6 October 1999 document that same physician stated that the applicant was filing for disability and he indicated that the applicant related that he had a history of back injury in the service, but that he only had an x-ray of his back during that time.  That doctor stated that it was not impossible that his present disability was partly the result of the injury noted in his military medical record.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 of the regulation provided, at that time, for the administrative separation of individuals who had demonstrated during the first 180 days of training that they lacked the necessary motivation, discipline, ability or aptitude to become effective soldiers.  This program, known as the Trainee Discharge Program, mandated the award of an honorable discharge.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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 paragraph goes on to say 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 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 29 July 1977, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 29 July 1980.

The application is dated 31 August 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

___kak__  ___ewl___  ___gjw__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000048584	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001221	
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.		
4.		
5.		
6.