MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           03 OCTOBER 2002                  
	DOCKET NUMBER:   AR2002072143

	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. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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, physical disability retirement or separation.  

She states that she was discharged without being compensated, and that she was never given a separation physical before she was discharged.  

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:

Prior to her enlistment in the Army, doctors at the Armed Forces Examining and Entrance Station at St. Louis diagnosed the applicant as having clubbed closed tubes – chronic salpingo-oophoritis (inflammation of a uterine tube and ovary), bilateral.  She had been diagnosed on 14 July 1970 for infertility of extensive bilateral salpingo-oophoritis and tubal closure.

On 4 February 1973, in connection with her enlistment, she signed a statement to the effect that she understood that she could be separated from the Women’s Army Corps because of marriage after satisfying service commitments on her current enlistment which were incurred by school attendance or by promotion, or upon completion of 18 months of her current enlistment, whichever was later.  She indicated at that time that she was married.

She enlisted in the Army for three years on 12 February 1973.  Her enlistment contract shows that she was granted a marriage waiver on 23 January 1973.  After completion of training she was assigned to a replacement battalion in Germany, first as a communication center specialist, then as a performing arts specialist.  Before a summary court-martial which convened at Fort Leonard Wood, Missouri on 29 May 1974, she was arraigned, tried, and pled guilty to AWOL from 19 March 1974 to 16 April 1974, and again from 21 April 1974 to    21 May 1974.

She remained at Fort Leonard Wood and was promoted to pay grade E-4 in December 1974.

A 25 November 1974 clinical record shows that the applicant underwent a diagnostic examination on 4 October 1974.  That record shows that the applicant had a 6 to 7 year history of involuntary infertility and a history of blocked tubes for the past 6 years.  She had a history of regular menses, and a positive history of pelvic inflammatory disease.  There were no other gynecologic symptoms except mild dysmenorrhea (painful menstruation).  Prior surgical history included a cyst removed on the left breast in 1965.  Her diagnosis at the time of her discharge from the hospital on 15 October 1974 was bilateral hydrosalpinx (watery fluid in a uterine tube). 

A 7 April 1975 clinical record shows that the applicant uneventfully underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy and incidental appendectomy on 2 April 1975.  That report shows that she had a prior history of chronic pelvic inflammatory disease requiring hospitalization, that she had blocked tubes; and that a diagnostic laparoscopy in November 1974 showed multiple adhesions with mild bilateral hydrosalpinx.  The record shows that her post-operative course was entirely unremarkable, and that she was discharged on 14 April 1975 with a four week convalescent leave.

On 19 August 1975 the applicant requested that she be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 8-3, because of her marriage.  She stated that she had been interviewed by a commissioned officer, and that she met all the requirements contained in the regulation.  

Her commanding officer recommended approval stating that the applicant was married prior to entering the Army, divorced, and remarried while on active duty.
On 27 August 1975 the separation authority approved her request.

A 29 August 1975 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  The report of medical history that she furnished for the examination listed her hysterectomy, breast tumor, and an operation on her leg and breast. 

On 16 September 1975 the applicant signed a statement that there had been no change in her medical condition since her last separation examination.

She was discharged on 16 September 1975 at Fort Leonard Wood.  She had 2 years, 6 months, and 6 days of service, and 60 days of lost time. 

A 22 September 1976 VA rating decision shows that the applicant submitted a claim for service connected disability for hysterectomy, kidney stones, nervous condition, and a cyst on her right breast.  The rating shows that on her history into the service she reported oophoritis in 1963, a cyst removed in 1966 and gonorrhea in 1968.  She also had her uterus cleaned out in 1971.  The physical examination reported a clinical diagnosis of chronic salpingo-oophoritis which cleared up with residual infertility.  Service records shows that the applicant complained of and was treated for vaginitis, vaginal discharge, abdominal cramps, acute hemorrhagic cryptitis (inflammation of the anal crypts) and other gynecological problems throughout her service.  In April of 1975 she was hospitalized for elective surgery because of chronic pelvic inflammatory disease with right ovarian cyst.  She had a total abdominal hysterectomy and bilateral salpingo-oophorectomy.  The service records did not show a nervous condition.  The mental status examination reported no significant abnormalities and the examiner gave her a diagnosis of anxiety reaction according to history secondary to situational stress.  She was hospitalized in May 1976 because of a mass in her right breast.  A mammography indicated benign characteristics.  A report of hospitalization in June 1976 indicated admission with complaints of right lower quadrant pain and an obstructing stone in the right renal pelvis was found.  A right pyelolithotomy (the operation of excising a renal calculus from the pelvis of the kidney) was performed.  There were no post operative problems.  She had no residuals from removal of the cyst or genitourinary abnormalities.  The medical member of the rating board stated that the applicant had pelvic inflammatory disease prior to service and that the resulting hysterectomy was remedial surgery.  He stated that her gynecological problems in the service did not aggravate the pelvic inflammatory disease.  Service connection was not warranted for the applicant’s hysterectomy.  The VA granted her a zero percent rating for pyelolithotomy.

A  17 May 1985 VA decision determined that the applicant had a less than        10 percent disability rating for pyelolithotomy.  On 4 November 1986 the VA informed the applicant that there was no evidence to warrant any change in its previous determination of a zero percent rating for a kidney stone condition.

On 5 November 1993 the applicant was notified that her request for service connection for a gynecological condition was denied.  On 19 October 1994 her appeal was denied.  

On 20 October 1995 the VA denied the applicant’s request for service connection for a nervous condition.  

On 22 September 1996 the VA denied her request for service connection for a gynecological condition.

On 13 February 2001 the VA granted her a 30 percent service connected disability rating for pyelolithotomy, effective 16 May 2000.  On 12 April 2001 the VA denied her request for an increase to that rating.

Army Regulation 635-200 provides for the separation of enlisted soldiers.  Paragraph 8-3, then in effect, states that an enlisted woman may request discharge by reason of marriage.  An honorable or general discharge certificate will be furnished. 

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

Army Regulation 635-40, then in effect, 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 member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she 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 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

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 she had a medical condition at the time of her discharge in 1975 that required physical disability retirement or separation.  To the contrary, the applicant requested discharge because of her marriage and her request was granted.  A report of medical examination shows that she was medically fit for discharge, and it appears that she continued to perform her duties until she was discharged.  Consequently, there is no basis to correct her record to show physical disability retirement or separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 16 September 1975, the date of her discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 16 September 1978.

The application is dated 10 April 2002 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 __  __WTM  _  __CG___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002072143	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021003	
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.	108.00	
2.		
3.		
4.		
5.		
6.