MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            15 June 2000                  
	DOCKET NUMBER:   AR1999031020

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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, disability retirement or separation. He states that subsequent to his separation the VA granted him disability based on post-traumatic stress disorder (PTSD) resulting from exposure to combat in Vietnam.  

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:

He initially entered active duty in 1969 and served in Vietnam from March to December 1971.  He was honorably discharged on 31 December 1971 and reenlisted in March 1980.  

The applicant was AWOL between 30 April and 13 September 1980.  When he returned to military control his commander preferred court-martial charges.

On 18 September 1980, a Mental Status Evaluation cleared the applicant for separation.  

On 19 September 1980, the applicant, after consulting with legal counsel, requested a discharge for the good of the service, under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His request was approved, and on 7 November 1980 he was separated under other than honorable conditions.  

Effective in 1994 the VA granted him a disability rating of 100 percent based on PTSD.  

Army Regulation 635-40, provides that an enlisted soldier may not be referred for, or continue, physical disability processing when actions has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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 7 November 1980, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 7 November 1983.

The application is dated 13 March 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

___owt__  ___kan__  ___mvt__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999031020	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000615	
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.		
3.		
4.		
5.		
6.