MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           18 SEPTEMBER 2001 
	DOCKET NUMBER:   AR2001057671

	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. Joann H. Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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, the applicant is requesting a physical disability discharge.  He is also requesting that this undesirable discharge be upgraded to honorable.

The applicant states that the Army illegally and fraudulently recruited him during September and October of 1978, that he was a victim of medical malpractice and of racist malicious persecution, and that he was wrongfully discharged from the Army on 21 January 1980.  

The applicant provides a 20 page document in which he outlines his problems with communicating with this agency and his dissatisfaction with the decision of the 1997 Army Discharge Review Board.  He goes on to state that he has never had a hearing and requests that he be granted one.  He states that his 1978 medical records, to include his screening physical examination for Army recruitment, his report of medical examination, and report of medical history were fraudulent, in that he did not sign, initial, or complete many items on those documents.  He states that his recruiter misled him into believing that he was completely qualified, when in fact he had congenitally flat feet.  He accuses Army doctors of medical malpractice because he was never informed that he had flat feet.    

The applicant states that he was provided poor medical treatment during his service, provides the dates that he went on sick call starting in October 1978 and continuing into 1980, and cites circumstances of each visit.  He states that he was seen because of his flat feet, because of back pains and muscle spasms, and because of psychological disorders.  He states that he underwent physical therapy.  He states that at the time of his discharge, a recommendation that he receive a psychiatric examination was ignored.  He states that his physical examination report at the time of his discharge was incomplete.  He denigrates the mental status report that he received prior to his discharge.  He questions the fact that he was cleared physically for discharge when he was hospitalized.

He states that his recruiter used his [the applicant] race to coax him into the Army, stating that the Army needed black law enforcement soldiers, while at the same time the recruiter knew he was not physically qualified.

The applicant disputes that he committed acts of willful misconduct, and stated that he never received a psychological examination even after several doctors stated that he should receive one.  He stated that he did request a discharge from the Army, but only after he had made several requests to see the Inspector General.  He states that he was never suitable for military duty.  

He states that his records will show that he signed quite a few forms, albeit reluctantly, and only after being threatened.  He states that he was a victim of what would amount to a slave contract.  He requests that everything that he said be taken into consideration.      

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:

On 20 September 1978 the applicant enlisted in the Army Reserve for six years, and on 3 October 1978 enlisted in the Regular Army for three years.  A screening physical examination for Army recruitment (SPEAR worksheet) shows that the applicant answered “No” to every question on that form concerning ailments that he had or had had.  The recruiter did not complete the second page of that form, e.g., indicating that the applicant was advised that he was qualified or not qualified for enlistment, but the recruiter signed and dated the worksheet.  A report of medical examination indicates that he was medically qualified for enlistment with a physical profile serial of 1 1 1 1 1 1.  No disqualifying defects were noted on that report.  In the report of medical history he furnished for the examination, the applicant stated that his health was good and he was not taking any medication.  He indicated on that report, by placing a check mark next to the item, that he had or had had only two ailments – chronic or frequent colds and skin diseases.  He authenticated that report by signing it.   

The applicant was assigned to Fort McClellan, Alabama for training as a military policeman.  He did not complete that training and in February 1979 he was assigned to Fort Lee, Virginia for training as a petroleum supply specialist.

On 1 March 1979 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go this his place of duty.  On 10 April 1979 he received nonjudicial punishment for disorderly conduct and for using abusive language.

He completed training and in June 1979 was assigned to a supply and service battalion at Fort Campbell, Kentucky.  

The applicant was AWOL from 18 September through 2 October 1979.  On         4 November 1979 before a summary court-martial, he was arraigned, tried, and he pled guilty to the charge of AWOL and to the charge of failure to go to his place on duty on 21 October 1979.  He was sentenced to be confined at hard labor for 30 days.  The sentence was approved and ordered executed.  On        14 November 1979 the applicant was confined in the installation detention facility at Fort Campbell, and on 28 November 1979 he was assigned to the Army Retraining Brigade at Fort Riley, Kansas.   

A 19 December 1979 report of medical examination shows that the applicant was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.  That report indicates that the applicant had long standing multiple physical complaints, but his only present problem was low back pain which was evaluated by an orthopedic, who recommended a psychiatric evaluation.  In the report of medical history the applicant furnished for the examination, he stated that his health was poor, and listed numerous ailments that he had or that he had had. 

A 27 December 1979 training progress report indicates that the applicant’s medical records were reviewed to determine if the applicant had received proper medical attention for his persistent complaints.  The reviewing official stated that he was satisfied that the applicant had received the optimal degree of attention and consideration from medical facilities and personnel throughout his military career.  He noted that the applicant consistently complained of pain but deliberately failed to do those alleviating exercises prescribed by his physicians, and that such actions were incompatible with the concern for his health that he voiced in his own behalf.

The applicant received nonjudicial punishment on 4 January 1980 for failure to go to his place of duty, and for disrespect in language toward an NCO.

The applicant was hospitalized from 9 January to 11 January 1980.

The applicant’s medical records show that he received an x-ray on his left foot on 3 January 1980.  No dislocation or fracture was noted.  He was treated for wheezing on 16 January 1979.  On 9 January 1980 he was seen because of a cold weather injury.  A chest x-ray revealed no abnormalities.  In an undated clinical record the applicant complained of swelling and aching knees, sinus headaches, hoarseness and soreness in his throat when he talked a little, trouble eating, a cyst on his pelvis bone, a previous back injury for which he was given valium, and an injury to his foot. 

A 14 January 1980 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He met the medical standards for retention in the Army.

On 24 January 1980 the applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, its effect, the rights available to him, and the effect of any action taken by him in waiving his rights.  He waived consideration of his case by a board of officers and indicated that he did submit statements in his own behalf [No such statements are available].  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.  

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for misconduct, frequent acts of a discreditable nature.  He noted that the applicant had received 3 Article 15’s and 1 summary court-martial.  He attached a resume of the applicant’s conduct, attitude, performance, and discreditable acts.  Fifty-two items were on that resume, including absences from training, lack of motivation, inspection deficiencies, failure to go to place of duty, late for duty, absence from unit area, disrespect to an NCO, failure to obey orders, unsatisfactory behavioral ratings, lack of motivation, and so forth. 

On 29 January 1980 the separation authority approved the request and directed that the applicant be furnished an under other than honorable conditions discharge certificate.  The applicant was discharged on 31 January 1980.  He had 1 year, 2 months, and 21 days of service and 38 days of lost time. 

The applicant submits clinical reports dated in 1994 and 1996 showing that he has been treated for problems with his feet, for low back pain, neck pain, shoulder blade pain, and muscle tenderness.

On 17 March 1997 in an unanimous decision, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct. 

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.

That regulation also states in pertinent part that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provisions which authorizes a characterization of service of under other than honorable conditions.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

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 his discharge was unfair or unjust; nor is there any evidence to show that the applicant was entitled to a physical disability discharge.  Consequently, there is no basis to correct his record to upgrade his discharge to honorable or to grant a physical disability discharge.

DISCUSSION:  The alleged error or injustice concerning his request for a physical disability discharge was, or with reasonable diligence should have been discovered on 31 January 1980, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on          31 January 1983.  By the same token, the alleged error or injustice concerning his request to upgrade his discharge was, or with reasonable diligence should have been discovered on 17 March 1997, the date the Army Discharge Review Board denied his request to upgrade his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 17 March 2000.

The application is dated 16 May 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

__JHL___  __MHM__  __KAH__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001057671	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010918	
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.	110.00	
3.	108.00	
4.	177	
5.		
6.