MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           20 December 2001                  
	DOCKET NUMBER:   AR2001061721

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Lester Echols		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:  That his discharge under other than honorable conditions be changed to a medical discharge.  He states that he joined the Army with a disability and the Army accepted him.  While on duty his illness got worse and he was not given a medical discharge.  He further states, that a psychiatrist, who advised him that he was disabled and could not continue in the Army, saw him.

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 enlisted in the Regular Army as a private, pay grade E-1, on 5 February 1980 for 3 years.

He was advanced to pay grade E-2 on 5 June 1980.

On 2 February 1981, his commander initiated a flagging action (FLAG) against him to block promotion to pay grade E-3, because the individual’s performance had been such as to not warrant promotion.

He was discharged under other than honorable conditions on 1 June 1981, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, administrative discharge conduct triable by court-martial.  He had a total of 1 year, 3 months and 27 days net service.

There are no medical records available that indicate that the applicant was treated for a disability while in the service.

His records show a Veterans Administration form 07-3101a (Request for Information), was completed by the applicant with the following: Item 9, “See attachment”, If You Received Any Treatment While in Service, Complete the Following Information, items 26A, Nature of Sickness, Disease or Injury, “Injury to Feet”; Item 26B, Dates of Treatment, “June to Dec 1980”; Item 26C, Name, Number or Location of Hospital, “Army Base, Strasburg Kaserne”, Germany; and Item 26D, Organization at time Sickness, Disease, of Injury was Incurred, “US Army.”

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 4-1, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge (a dishonorable discharge or a BCD) may not be referred for disability processing unless the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence.

Army Regulation 635-40, paragraph 3-1, provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, Appendix B, Army Application of the VA Schedule for Rating Disabilities, paragraph B-3f, provides that conditions which do not render a soldier unfit for military service will not be considered in determining the compensable disability rating unless the conditions contribute to the finding of unfitness. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. 

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 1 June 1981, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 June 1984.

The application is dated 15 August 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 the 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_jns____  _le____  _tbr____        CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061721	
SUFFIX		
RECON		
DATE BOARDED	20011220	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.