MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            10 April 2001     
	DOCKET NUMBER:   AR2001051221

	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:

	Ms. Sherri V. Ward		Chairperson	
	Mr. James E. Anderholm		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:  In effect, that her uncharacterized discharge be changed to reflect disability separation or retirement.  She states that she injured her back while in the military and was never afforded an opportunity to see a military medical doctor or to appear before "a medical review board" to determine if she was fit to continue her military service.  In support of her request she submits copies of treatment by civilian health care professionals in 1993.  A DD Form 293 was accepted in lieu of a DD Form 149.

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:

She enlisted in the U.S. Army Reserve (USAR) in January 1992 under a split training option.  The applicant successfully completed basic training (Phase I) in the summer of 1992 between her junior and senior years of high school.  She was scheduled to attend advanced individual training (AIT) (Phase II) in 1993 following graduation from high school.

On 3 April 1993, while returning home from a USAR drill, the applicant was involved in a motor vehicle accident.  She was treated for a "compression fracture of the 11th thoracic vertebra."  An 11 May 1993 statement from her treating physician indicated that she was undergoing physical therapy and continuing to improve.

In September 1993 the 81st U.S. Army Command surgeon determined, after reviewing available medical records, that the applicant's back condition did not render her unfit for continued service.  

There is no indication the applicant ever attended her AIT.

In February 1994 the applicant acknowledged receipt of a memorandum noting she had several unexcused absences from scheduled unit training assemblies.  She was advised in the memorandum that failure to have the absences excused and continued absences would result in her being declared an unsatisfactory participant.  The applicant did not acknowledge two subsequent notification memorandums and on 30 June 1994 the applicant was discharged from the USAR as an unsatisfactory participant.  Her service was uncharacterized.

Army Regulation 135-178 provides for the separation of members of the Army National Guard and Army Reserve.  It states that a soldier is subject to discharge for unsatisfactory participation when it is determined that the soldier is unqualified for further service because of unsatisfactory participation/non-attendance at scheduled unit training assemblies.  The service of a member separated under this provision will be characterized as honorable or under honorable conditions as warranted by his or her military record, unless a soldier is in an entry level status (i.e., not more than 90 days of Phase II under a split training option) in which case his or her service will be uncharacterized.  The applicant never completed Phase II of her training and as such her service was required by regulation to be uncharacterized.

Army Regulation 635-40 states 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.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. The applicant was determined to be fit for continued service in September 1993 and as such there is no basis for disability separation or retirement.

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 30 June 1994, the date the applicant was discharged from the USAR.  The time for the applicant to file a request for correction of any error or injustice expired on 30 June 1997.

The application is dated 29 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

__svw___  ____jea_  ___gdp__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001051221	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010410	
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.