MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 AUGUST 2003                  
	DOCKET NUMBER:   AR2003086227

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		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:  In effect, physical disability retirement.  

The applicant states that he was discharged because of a head injury, resulting in a reduction in his effectiveness.  He spent six years in the Army and planned on making it his career.  After the accident he was hospitalized for two months, partly in a coma, with therapy for months.  Afterward, he was assigned to Fort Bliss, Texas, Germany, Vietnam, and Fort Bragg, North Carolina.  He could not perform his duties at Fort Bliss because of his profile, and therefore he was assigned to an organization in Germany.  He went to the NCO Academy, but stationed where all he did was perform guard duty.  He got into fights, and then was assigned to an organization in Vietnam.  Thereafter, he was sent to Fort Bragg.  He was informed that he could not be promoted because of the limitations caused by his injuries.  He tried to end his life.  He should have received a medical discharge. 

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 29 July 1966, completed training as a wheeled vehicle mechanic and assigned to Fort Benning, Georgia, where he completed airborne training.  In December 1966 he was assigned to Fort Campbell, Kentucky.  On 29 July 1967 he reenlisted in the Army for four years.  In September 1967 he was assigned to Fort Bliss, Texas for training as a Hercules missile crewman.  He completed training and was assigned to Fort Barry, California as a fire control operator with an artillery battery.  

The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was a patient in a military hospital in San Francisco from 3 May 1969 until 17 July 1969, after which he was assigned to Fort Bliss, Texas.  On 10 November 1969 he was awarded the Good Conduct Medal for the period 30 July 1966 to 29 July 1969.

In January 1970 he was assigned to an artillery battery in Germany as a fire control operator.  On 13 January 1970 he reenlisted for six years.  In September 1970 he departed Germany en route to Vietnam.  He arrived in Vietnam in November 1970 and was assigned to an artillery battery as a wheel vehicle repairman.  He completed his tour in Vietnam, and in December 1971 was assigned to an artillery battery at Fort Bragg.

On 29 June 1972 the applicant's commanding officer notified the applicant that he intended to recommend that the applicant be discharge under the provisions of Army Regulation 635-212 for unsuitability due to character and behavior disorders.  The applicant consulted with counsel, stated that he had been advised of the basis for the contemplated action, and waived consideration of his case by a board of officers.  He stated that he understood the nature and consequences of the general discharge that he might receive. 

The applicant's commanding officer recommended to the separation authority that the applicant be discharged with an honorable discharge.  He stated that his recommendation was based on the results of a psychiatric evaluation which indicated suicidal tendencies, a poor attitude, and work performance; and for taking an overdose of drugs.  He stated that the applicant received psychiatric care and counseling from the time that he was admitted to the hospital on         14 June 1972 for drug overdose until he was released on 22 June 1972.  He stated that he was not likely to respond to rehabilitation attempts.  The report of medical examination attached to the recommendation indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that the applicant furnished for the examination, the applicant did not indicate that he had, or had had, any medical problems or ailments.

The separation authority approved the recommendation and directed that the applicant be issued an Honorable Discharge Certificate.  The applicant was discharged on 3 August 1972.  He had 6 years and 4 days of service.

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 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 indicate that he is entitled to a physical disability retirement or discharge; nor is there an evidence to indicate that he was discharged because of his head injury.  Consequently, there is no basis to correct his record as he requests.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 3 August 1972, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 3 August 1975.

The application is dated 29 January 2003 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

__FNE __  __MVT__  __JTM___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003086227	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030819	
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.