MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           03 OCTOBER 2002                   
	DOCKET NUMBER:   AR2002073097

	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.

He states that he should have received a medical discharge.  The report of medical examination he received prior to entry on active duty shows that he had no medical problems.  His discharge examination shows that he had conditions warranting a medical discharge.  The applicant submits a copy of his                DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his 2 October 1968 report of medical examination, and his              29 August 1969 report of medical history.

He states that prior to his discharge he reported numerous medical conditions, to include frequent or severe headaches, dizziness or fainting spells, a history of a head injury, nervous trouble, attempted suicide, and so on.  He states that the examining physician indicated that he had joints [aching?] that existed prior to his service, headaches when he wore a hat, dizziness [when he stood up], astigmation, bronchitis [no recent problems], minor back problems; and that he had an unconscious spell eight months ago and that his knee popped if he stood too long.

He states that while training at Fort Knox, Kentucky, he suffered trauma to his head and was unconscious for several hours, and subsequently suffered from headaches, dizziness, and fainting spells.  He acquired a drug habit while in the Army and was provided no treatment.  He underwent a mental examination, the results of which were unknown because his sanity was questionable.  He suffers from bronchitis, which was not so when he entered on active duty.  He handled radioactive substances, and chemical and biological agents during his training at Fort McClellan, Alabama.  Although he did have a history of joint disorder prior to his service, he did not have back problems, which he now has.
  
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 7 October 1968, completed basic combat training, and in January 1969 was assigned to Fort McClellan, Alabama, for advanced training.  On 14 February 1969, the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go to his place of duty.

The applicant completed training and in March 1969 was assigned to a maintenance company in Germany.  On 10 May 1969 the applicant received nonjudicial punishment for disobeying a lawful order and for failing to go to his place of duty.

Before a special court-martial which convened on 20 June 1969 the applicant was arraigned, tried and pled guilty to stealing three boxes of incendiary grenades, one box of smoke grenades, and six rifle cartridges; willfully damaging property by cutting a fence; and willfully damaging a door to a building, the property of the United States, by exploding an incendiary grenade.  He was sentence to hard labor for six months.  The sentence was reduced to four months by the convening authority and he was directed to be confined in a stockade in Germany. 

On 26 August 1969 the applicant underwent a psychiatric examination.  The report of that examination shows that the applicant’s condition was diagnosed as an immature personality, passive-aggressive type.  The report shows that he was oriented, rational, and coherent, that he gave no indication of abnormal thinking or behavior suggesting psychosis, but that his rehabilitation potential was poor.  He was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He had a character and behavior disorder, but had no mental disease or defect sufficient to warrant disposition through medical channels.  The applicant was psychiatrically cleared for any administrative action deemed appropriate.

On 8 September 1969 the applicant’s commanding officer notified the applicant that he was being considered for elimination from the Army for unsuitability under the provisions of Army Regulation 635-212.  The applicant consulted with counsel and stated that he understood the basis for the contemplated action.  He waived consideration of his case by a board of officers, and elected not to submit statements in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive.

On 9 September 1969 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-212.  He recommended discharge because of his habits and traits of character manifested by repeated commissions of petty offenses and other acts contrary to good order and discipline.  He stated that the applicant’s performance of duty had been unsatisfactory, and that further rehabilitative efforts would be useless.  He recommended that the applicant receive a general discharge.  The recommendation listed 10 enclosures, one of which was his report of medical history, which he provided with his request as indicated above; another, his report of medical examination, which is not contained in his records.  
On 10 September 1969 the separation authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.  He was discharged at Fort Dix, New Jersey on 29 September 1969.  He had          10 months and 25 days of service, and 29 days of lost time. 

Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. 
It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as
determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

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 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, 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 indicate that he was physically unfit at the time of his discharge in 1969, notwithstanding the report of his medical history that he provided with his application.  There is no basis to correct his record to show physical disability retirement or separation.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 September 1969, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 29 September 1972.

The application is dated 1 May 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	AR2002073097	
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.