MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           16 APRIL 2002                   
	DOCKET NUMBER:   AR2002067008

	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. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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:  Physical disability retirement with a 100 percent disability rating.  

In a 21 December 2001 document addressed to the VA the applicant stated that he suffered from post traumatic stress disorder (PTSD) and was 100 percent service connected disabled.  He states that he was illegally refused a medical discharge, illegally refused a 100 percent disability rating, and refused treatment for service connection disability and injuries.  He was refused a service connected pension.  He provides information concerning his duties while in the service, that he was qualified for every job in the Army, but his talents were wasted when he was made a generator repairman.  Failure to obey regulations caused damage to every joint, muscle, tendon, and ligament in his body.  He received 300 x-rays, and had numerous profiles.  He still has nightmares concerning lifting and carrying.  He could not and cannot move, work, or sleep at night.  He was denied a medical discharge based on race, sex, sexual preference, and country of origin.  His thumbs were so bad, that he could not hold a pencil.  He mentions a broken thumb, joints in big toes fused, second hernia repair after his discharge from the Army, three slipped discs, exposure to microwaves in tower, and exposure to “nukes.”  

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:

The applicant enlisted in the Army for three years on 16 September 1977.  His enlistment documents show that he enlisted with an option for an assignment in Alaska, and that he enlisted in order to be trained as a power generator equipment repairman.  He completed training and in June 1978 was assigned to the 524th Ordnance Company in Alaska.  In May 1979 he was assigned to Company B, 172nd Infantry Brigade.    

In a 10 December 1979 letter the applicant requested separation from the Army because of extreme apathy.  He stated that he spent a miserable year in a unit which deactivated, transferred to another unit, and could not operate the equipment, let alone repair it.  He stated that he did not want any part of the military, had no inclination to work, and was tempted to go AWOL.  He stated that his continued presence was detrimental to himself and the Army.  He stated that he had experienced deep depression because of his personal and Army-related problems concerning his lack of motivation and his physical condition.  He stated that laboratory tests showed that his liver was functioning abnormally.  He stated that he was arthritic, had frequent diarrhea, and digestive tract problems, that lifting caused him lower back pain, and swelling and pain in his hernia.  He stated that he did not have the energy or motivation to do anything, or cared.  He stated that it was very discouraging to waste his time in the military.  He stated that he had a dream that two angels appeared and expressed their disappointment with him for being in the Army.  He stated that he had to get out of the Army.

A 27 December 1979 statement from a behavioral science specialist at the Army Medical Department Activity at Fort Richardson, Alaska, indicates that the applicant was seen on nine occasions between November 1978 and                 18 December 1979.  That report indicates that the applicant had never been able to form relationships with other people very successfully, that he seemed dissatisfied with most of his life activities, and that counseling was extremely difficult because the applicant had a reason for not doing most any plan suggested.  It was recommended that the applicant be separated from the Army because he would only become more apathetic, dissatisfied, and unpredictable if forced to stay.     

The applicant was counseled on three occasions in December 1979 and January 1980 for not being at his place of duty and for being late for a formation.  A         24 January 1980 statement from the applicant’s supervisor indicates that the applicant did not care for his job, that he had an unstable attitude, and that NCO felt that he should be discharged from the Army.  

On 6 February 1980 the applicant’s commanding officer notified the applicant that he was initiating action to release him from active duty under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program), because of his lack of motivation as indicted by reports of evaluation, statements, tests, and letters authored by the applicant.

The applicant acknowledged notification of the proposed separation action and voluntarily consented to his separation.  He made a statement to the effect that he could not believe that he was ever so desperate as to join the Army, and that it was a source of embarrassment to his family and friends.  He stated that the military was worse than he thought possible, that he hated being told what to do, especially by people not as intelligent as himself.  He stated that his job is an idiot job, that he did not belong in the Army, and that he could not take orders.  He stated that he did not like the American society, economic, or political system. He stated that he did not support most of the American foreign policy and it was not worth fighting for.

A 13 February 1980 report of mental status evaluation shows 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 5 March 1980 the separation authority approved the recommendation to separate the applicant from the Army and directed that he be furnished an Honorable Discharge Certificate.

On 11 March 1980, the applicant stated that he had increased pain in his thumbs since his separation medical examination on 22 February 1980, that it hurt to hold a pencil, and that increased doses of aspirin and heat treatment did not ease his pain or stiffness.  He stated that his shoulder joints snapped more often, and that the joint in his right big toe had become more painful.

The applicant was discharged at Fort Richardson on 13 March 1980.  He had     2 years, 5 months, and 28 days of service.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, then in effect, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, then in effect, provides 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.

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 show that he had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis to correct his record to show physical disability retirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 13 March 1980, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 March 1983.

The application is dated 4 November 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 __  __MMD__  __JTM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002067008	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020416	
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.