MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           11 April 2002                  
	DOCKET NUMBER:   AR2001062328

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge		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 essence, that her DD Form 214 (Certificate of Release of Discharge from Active Duty) item 23 (type of separation) be changed to show Physical Disability.  She states that the word retirement should be removed, so her military service time can be counted towards her leave or vacation time calculations by the Federal Post Office.  She dates the date of discovery as 21 August 2001 and believes the Board should consider the case because she will “lose 1 hour per week” from her leave.  In support of her claim she submits a Postal Service e-mail, which defines their policy on accruing leave. 

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 12 August 1980, the applicant enlisted on active duty for 3 years.  Following successful completion of basic and advanced individual training she was assigned to Germany in military occupational specialty 91B10 (Medical Specialist) on 11 December 1980.  

On 10 June 1981, the applicant’s DA Form 2-1-1 (Personnel Qualification Record) shows that she was transferred as a patient to Walter Reed Army Medical Center, Washington, DC.

On 6 Jul 1981, she received permanent change of station orders, which assigned her to the Medical Holding Company at Walter Reed Army Medical Center.

On 24 November 1981, Orders D226-4, were issued by the Department of the Army, U.S. Army Military Personnel Center, Alexandria, VA, relieving her from assignment and duty effective 1 December 1981, because of a physical disability rated at 40%, which was incurred while entitled to basic pay and under conditions which permit retirement for a permanent medical condition.

On 1 December 1981, the applicant was retired, under the provisions of Title 
10 United States Code (USC) chapter 61, section 1201 from active duty by reason of a physical disability (Permanent) and placed on the retired list effective 2 December 1981.  She was credited with 1 year, 3 months and 20 days of active service.  The highest rank obtained was private first class pay grade E-3.

Title 10, USC, chapter 61, section 1201, provides for retirement, because of a physical disability of regular and reserve component member on active duty for more than 30 days. 

Army Regulation 635-5, then in effect, provided the policy and procedures for the preparation of separation documents.  Item 23 (Type of Separation) of the DD Form 214 will reflect the type of separation based on the separation authority.  In her case separation under Title 10 USC chapter 61, section 1201, denotes retirement from active duty because of a physical disability.  

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

The application is dated 30 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 her case had been considered and it had been concluded that there was no basis to recommend a correction of her 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 her application within the three-year time limit.
BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__MKP__  ___EJA  _  __RTD__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062328	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020411 	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1981.12.01	
DISCHARGE AUTHORITY	TITLE 10 USC CH 61 SEC 1201 	
DISCHARGE REASON	PHYDISAB	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A100.0000	
2.	A110.0200	
3.	A108.0000	
4.		
5.		
6.