MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            28 AUGUST 2001
	DOCKET NUMBER:   AR2001056330

	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. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 discharge.

She states that her injury while in the Army National Guard forced her to end her career, and she should have been informed about a medical discharge and the options available to her.  Her injury took place while in the Army National Guard, but she was not on duty (weekend duty) when it occurred.  She was not informed of any option or not told that she could be placed in a unit that would accept her injury.  She was told nothing.  

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 7 May 1979 and served on continuous active duty until her honorable discharge at Fort Dix, New Jersey on 4 April 1985. She was discharged in the pay grade of E-5.  She enlisted in the Army Reserve immediately upon her discharge for assignment to a transportation detachment in Scott Air Force Base, Illinois; however, she was transferred to the Army Reserve Control Group (Reinforcement) on 2 June 1985 because she was a “no show.”

On 3 August 1985 the applicant enlisted in the Texas Army National Guard for one year.  On 20 February 1986 she was transferred to a military police National Guard unit in Jefferson Barracks, Missouri.  She was discharged from the Army Reserve on 4 April 1986.  

On 13 July 1986 she extended her enlistment for six years in order to obtain a retention bonus.  She was promoted to the rank of Sergeant E-5 on                    30 June 1986.   
  
An NCO evaluation report ending in October 1989 indicates that the applicant had sought transfer to the Inactive National Guard during the rating period.

An 18 April 1990 memorandum from the applicant’s unit informed her that she had been charged with more than nine unexcused absences from unit training assemblies within a one year period and would be declared an unsatisfactory participant, and unless the absences were subsequently excused, be given a general discharge and be transferred to the Individual Ready Reserve (IRR).

In a 20 April 1990 request for orders, the applicant’s commanding officer indicated that the applicant was requesting transfer into the Army Reserve Control Group due to relocating out of state.  He indicated that the applicant had been excused from training assemblies for medical reasons and had asked for a release to join the Army Reserve in a troop program unit.  However, that release had expired, and she indicated that she would return to a drill status, but never did.  Notices of her unexcused absences were forwarded to her and each time she received a notice she indicated that she was still trying to get into a Reserve unit.  He received her request for an inactive status on 19 April 1990. 

The applicant was discharged from the Army National Guard of Missouri with a general discharge on 20 April 1990 and transferred to the Army Reserve Control Group (IRR) at St. Louis.  On 2 August 1992 she was discharged from the Army Reserve.

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 or her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that the soldier was unable to perform his/her 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.

There is no medical evidence nor has the applicant submitted any, to show that she was injured while on active duty or in an active status in the Army Reserve or the Army National Guard, and as such there is no basis for physical disability discharge.

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 2 August 1992, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 2 August 1995.

The application is dated 13 April 2001 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JNS __  __RTD __  __DPH  _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001056330	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010828	
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.	108.00	
2.	142.00	
3.	177	
4.		
5.		
6.