MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            09 AUGUST 2001
	DOCKET NUMBER:   AR2001057016

	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. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		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 discharge.  

The applicant states that he has a service connected disability, post traumatic stress disorder (PTSD), as a result of his service in Vietnam, and his discharge should have been upgraded years ago.  He states that it is discriminatory and inhumane [to continue to show his discharge as bad conduct].  He states that a district court in Colorado entered a judgment in favor of a soldier challenging an administrative decision refusing to upgrade his discharge, and cites the reasons thereof.  He states that this Board may in the interest of justice review and correct any military record no matter how long ago the alleged error or injustice occurred.  The applicant cites records of other, presumably court cases and law, which purportedly support his request.  

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:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his request to upgrade his discharge AC77-00247 on                 6 July 1977, and  AC77-00247A on 9 March 1983.  

The applicant was inducted into the Army on 16 April 1969, completed training, and in September 1969 was assigned to an artillery battery in Vietnam.  As a result of a general court-martial which convened on 19 October 1970, the applicant was sentenced to a bad conduct discharge and confinement at hard labor for one year.  He was confined at Fort Leavenworth, Kansas.  The applicant served his sentence, returned to duty, and was placed on excess leave.  His sentence was affirmed and he was discharged on 14 July 1972. 

A 6 April 1971 psychiatric evaluation at the disciplinary barracks at Fort Leavenworth, where he was confined, indicated that the applicant’s condition was diagnosed as inadequate personality, chronic and moderate.

On 23 May 1986 the applicant was informed that his second request for reconsideration had been reviewed, but not considered by the Board because he had not submitted any new material evidence to establish error or injustice. 

Army Regulation 635-40 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 regulation also states 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.

Furthermore, 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.  

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.

There is no evidence, nor has the applicant provided any, to indicate that he incurred any disability during his military service.  Nonetheless, he could not have been referred for physical disability processing because of the nature of the court-martial charges preferred against him and the resultant sentence to a bad conduct discharge.  Consequently, there is no basis to grant his request for physical disability retirement or discharge. 

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 July 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice pertaining to physical disability expired on 14 July 1975.

The application is postmarked on 28 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

__INW __  __FNE __  __GJW__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001057016	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010809	
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.	108.00	
3.	177	
4.		
5.		
6.