MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           24 August 2000                    
	DOCKET NUMBER:   AR1999030483

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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.  

The applicant states that personnel in his chain of command and medical personnel failed to adhere to medical, procedural, and legal regulations.

He states that personnel in his chain of command did not conduct a line of duty investigation, a medical fitness evaluation, provide PEBLO (physical evaluation board liaison officer) counseling, conduct a MEBD (medical evaluation board), convene a PEB (physical evaluation board), or assign him to the TDRL (temporary disability retired list).  They also returned him to duty with one unhealed eye and one untreated injury.  He states that senior medical officers did not follow the regulations concerning medical fitness and continued active duty determinations.

The applicant states that he was released from convalescent leave to active duty with a healing retina detachment medical condition to his right eye that was not completely corrected during surgery, and with two areas of tears in his left eye that was not treated, in violation of Army Regulations 635-40 and 40-501. Additionally, his injury automatically qualified him as medically unfit.  He was wrongfully released to active duty with a medical profile.    

The applicant provides a chronology of his medical treatment beginning on        11 August 1983 and continuing through 15 December 1983.  He provides ten tabs, labeled Medical 1 through Medical 10, to support his statements.  He states that he was medically unfit when he was returned to active duty, and that a line of duty determination should have been made in his case, he should have had a MEB, PEBLO counseling, and a PEB, and that the regulations concerning those matters were violated.

The applicant provides information concerning the professional consequences of his medical condition, stating that upon return to active duty status, he met with his senior rater and his new rating officer.  His senior rater told him, in effect, that they did not know what to do with him because of his medical condition, that he would not be competitive as an active duty officer and would not be promotable with the type of profile that he had, and advised him that he should look to a civilian career.  

He states that, based on the information from his senior rater, and under duress, and emotional and physical pain, he tendered an unqualified resignation.  He states that the physicians who treated him issued him a career ending permanent duty medical profile, but failed to perform or adhere to rules concerning a MEBD, PEB, line of duty investigations, or assign him to a TDRL status during recovery.

He states that his service record as a Regular Army officer was on a fast track.  His last officer evaluation report (OER) was not good, and members of his command allowed an improperly dated and improperly assessed OER to be issued.  He provides a copy of the three OERs he received prior to his injury, and the poor OER he received after his injury.

At Tab 14 he provides a statement why the Board should consider his case, considering the length of time that has passed since his discharge.  He provides a copy of his DD Form 214 showing that he was discharged 1 February 1984. 

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 spent 3 years and 19 days in the Air Force and was released from active duty in pay grade E-4 on 17 September 1976.  

The applicant was appointed a second lieutenant of artillery in the Army Reserve on 5 June 1978, appointed a Regular Army officer on 12 June 1978, and in March 1981 branch transferred from field artillery to quartermaster.

The documents that the applicant has provided show that he was treated for problems with his eye, that he was referred to a civilian doctor on                       12 August 1983 (Medical Tab 2) for repair of a retinal detachment, and that he underwent surgery on 13 August 1983 (Medical Tab 3).  A 16 August 1983 medical record shows the remark, “For admission to convalescent leave.” (Medical Tab 4).  Documents after that date show continued eye treatment.  

The applicant’s OERs as a Captain prior to his surgery were excellent.  His senior rater placed him in the center of mass on all three reports.  The OER he received after the surgery was not good, as the applicant contends.  However, his senior rater again placed him in the center of mass on this report.

On 1 October 1983 the applicant tendered his unqualified resignation from the Army, stating that he intended to pursue a career in civilian industry.  His request was approved with a separation date of 1 February 1984.

A 15 December 1983 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 1. 
His eye problems were noted on that report.  In the report of medical history he furnished for the examination, the applicant stated that his health was “good to very good.”  His eye history was noted on that report.

The applicant was discharged on 1 February 1984.  He had over 8 years of active service.
 
On 18 June 1985 the applicant was appointed a Reserve commissioned officer of the Army.  He continued his service in the Army Reserve and was promoted to major on 11 June 1990.  His officer evaluation reports from 1985 through 1994 show service in troop program units, with numerous periods of annual training, and active duty for 110 days beginning in June 1991.

A 27 February 1988 quadrennial report of physical examination shows that the applicant was medically qualified for retention [in the Army Reserve] with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination the applicant stated that his health was very good.

A 12 November 1991 report of physical examination [for separation] shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 2 1.   

Army Regulation 600-8-1, part five, concerns line of duty investigations, and states in pertinent part that line of duty investigations are conducted essentially to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  The line of duty determination is presumed to be “LD YES” without an investigation in the case of disease. 

Army Regulation 40-501, chapter 3, then in effect, sets forth the various medical conditions and physical defects which may render a member unfit for further medical service, and states in pertinent part that members with conditions listed in that chapter will be evaluated by a medical board and will be referred to a physical evaluation board.  It states that the chapter provides general guidelines and is not to be taken as a mandate to the effect that possession of one or more 

of the listed conditions means automatic retirement or separation from the service.  When a member is being separated for reasons other than physical disability, his continued performance of duty creates a presumption that the member if fit for duty.  The unilateral detachment of the retina, but only for specific reasons, is listed in this chapter.  The bilateral detachment of the retina regardless of etiology or results of corrective surgery is listed.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures in determining whether a member is unfit because of physical disability.

Paragraph 4-8 of that regulation states in pertinent part that the medical treatment facility commander will conduct an examination of a member referred to him for evaluation.  If it appears that the soldier is not medically qualified to perform duty, the medical treatment facility commander will refer the soldier to a MEBD.

Paragraph 4-11 states in pertinent part that a MEBD refers a member to a PEB when, because of medical impairment, he may be unable to perform his duties and optimum hospital benefits have been attained.  

The MEBD will recommend referral of members who do not meet medical fitness standards to a PEB.  A PEB determines whether a soldier is unfit because of physical disability to perform his duties, and if unfit, makes a recommendation as to a permanent disability retirement, temporary disability retirement (TDRL), or separation with severance pay.  The PEBLO informs the solider of the informal PEBs findings and recommendation and counsels the soldier.

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 February 1984, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 February 1987.

The application is dated 22 July 1999 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___gdp__  ___alr___  ___clg___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999030483	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000824	
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.  177	142.00	
2.	108.00	
3.		
4.		
5.		
6.