MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            02 OCTOBER 2001                   
	DOCKET NUMBER:   AR2001059202

	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. Margaret K. Patterson 		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Richard T. Dunbar		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, disability retirement or separation.  He notes, in effect, that he has rheumatic fever as a result of his military service and as such should have been medically retired or separated.  He submits no evidence in support of 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:  The applicant's military records show:

He entered active duty on 16 September 1948.  His service medical records indicate he was hospitalized in May 1949 as a result of rheumatic fever and rheumatoid arthritis.  He was ultimately returned to general service duties in June 1949.

In the spring of 1950 action was initiated by the applicant’s unit commander to administratively separate him from active duty under the provisions of Army Regulation 615-369.  His commander noted in a statement that during conversations with the applicant he had to be continually reminded to speak more coherently, that he had, in effect, made inappropriate phone calls to the Red Cross and to a senior officer in the chain of command.  He noted that the applicant was “quite belligerent in his attitude” and that he failed to “show his ability in various assignments in this organization without satisfactory reaction.” 

A separation physical examination noted the applicant’s hospitalization for rheumatic fever and arthritis in 1949, but the evaluating physician found the applicant medically qualified for separation.  The physician noted that there were no disqualifying mental or physical disabilities sufficient to warrant referral for disability processing.

The applicant appeared before a board of officers who concluded the applicant did not possess the required degree of adaptability for the military service and recommended that he be discharged for ineptness and lack of adaptability.  The recommendation was approved and on 15 May 1950 the applicant was separated from active duty with a general discharge.

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 occurring 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. 

Army Regulation 615-369, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for inaptitude, unsuitability (which meant a lack of the required degree of adaptability) or enuresis.  The regulation could not be applied to persons who had any disqualifying mental or physical defect.  An individual discharged for inaptitude or unsuitability was furnished a general discharge certificate.

Although the applicant may have been treated for rheumatic fever while in the military there is no evidence, nor has the applicant provided any, that it inhibited his ability to perform his military duties.  There is no evidence which indicates he had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

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 15 May 1950, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 15 May 1953.

The application is dated 3 June 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

__MKP__  __KAK __  __RTD __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001059202	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011002	
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.