MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:  8 February 2001
	DOCKET NUMBER:  AR2000049410

	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. Lee Cates		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: That his records be corrected to show that he was not in the stockade for 9 months.  He also requests that the reason for his discharge be changed from unfitness to medical.  He provides a self-authored statement concerning his request for a medical discharge.  Counsel was silent on the issue.

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 available military records show:

On 2 November 1967, he was inducted into the Army of the United States.  He completed his required training and was awarded military occupational specialty 94B (Cook).  There is no record of his advancement above pay grade E-1.

On 30 January 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for disobeying a lawful order on 28 January 1968.  His punishment included a forfeiture, restriction and extra duty.

During the period 5 to 7 February 1968 (3 days), he was absent without leave (AWOL).

During the period 21 to 28 February 1968 (8 days), he was AWOL.

During the period 4 to 5 March 1968 (2 days), he was AWOL.

On 4 April 1968, he accepted NJP for AWOL for the period 23 to 28 February (sic) and 4 to 5 March 1968.  His punishment included a forfeiture of pay, restriction and extra duty.

During the period April to May 1968 (37 days), he was AWOL. 

He was convicted by a special court martial for being AWOL for the period April to May 1968 (sic).  His sentence included confinement at hard labor for               2 months, a forfeiture of $50 pay for two months, and a reduction to pay grade  E-1.

During the period May to July 1968, he was confined in a military facility for an unspecified period. 

During the period 13 October 1968 to 3 January 1969 (2 months and 18 days), he served in Germany.

On 7 November 1968, a Report of Psychiatric Evaluation indicates a diagnosis of Immature Personality.

On 7 November 1968, the commander advised the applicant of his contemplated action to separate him under the provisions of Army Regulation 635-212, for a character and behavior disorder and of his rights.

On 7 November 1968, after consulting with legal counsel, the applicant acknowledged the commander’s contemplated action to accomplish his separation.  He waived consideration of and personal appearance before a board of officers and representation by legal counsel.  He elected not to submit statements in his own behalf.  He acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life.

On 12 November 1968, a Medical Officer Report indicates he had no disqualifying mental or physical defects sufficient to warrant processing through medical channels.

On 28 November 1968, the appropriate separation authority approved his discharge for unsuitability under the provisions of Army Regulation 635-212 and directed he be issued a General Discharge Certificate (GDC).

On 7 January 1969, he was discharged in pay grade E-1 and issued a GDC, under the above-cited regulation.  His separation document indicates he had     11 months and 20 days of creditable service and 77 days of lost time.  

Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  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.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated 30 percent disabling.

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.

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 the said medical condition reduces or impairs the social or industrial adaptability of the individuals 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.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 January 1969, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 7 January 1972.

The application is dated 5 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___  ___dh_____  __gp____ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000049410	
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	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.108	PD Separation	
2.		
3.		
4.		
5.		
6.