MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           22 August 2000                   
	DOCKET NUMBER:   AR1999032139

	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. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson 		Member	
	Mr. Kenneth W. Lapin		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 discharge.

The applicant states that the Army doctor should never have given him choices.  He did not understand how bad it [his disability] was.  He had problems throughout his military service with the same symptoms that exist today.

He states that he was given a choice between a medical discharge or a discharge under honorable conditions.  He was in the hospital at Fort Hood, Texas for the exact symptoms that he now has.  Those symptoms have worsened over the years.  His medical problems started in 1984.  He received a blow to the top of his head, which was diagnosed as whiplash.  He wore a collar for several weeks.  Furthermore, he hurt his neck, back, and arms in 1984 in Germany as a result of an accident when attempting to remove an engine from a truck.  He was hospitalized at Fort Hood for similar problems and also for headaches.  An attempted spinal tap went awry.   He [a doctor] said something was seriously wrong with him, but did not know what it was.  He was then given two options, either a medical discharge or a discharge under honorable conditions.  He was young, and figured he could change his discharge to a medical discharge if and when he needed it.  His symptoms have since been diagnosed as muscle spasms by several doctors, even prior to going to the Danville VA hospital.      

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 four years on 31 August 1983.  He completed training and in January 1984 was assigned to an ordnance company in Germany as a heavy vehicle mechanic.  He was promoted to pay grade E-4 in August 1985.  In January 1986 he was transferred to Fort Hood.  

The applicant received nonjudicial punishment under Article 15, UCMJ, on four occasions during his military service, the first on 25 June 1985 while in Germany, and the last on 8 July 1986 at Fort Hood.  Misconduct included resisting arrest, failure to pay a just debt, drunk and disorderly, failure to go to place of duty, disobedience of a lawful command, disobedience of a lawful order, and AWOL.  He was counseled on four occasions concerning his misconduct and his unsatisfactory performance of duty.

A 9 July 1986 medical report indicates that he was treated for pain and problems with his eyes.  The report indicates that he was to be referred to an opthamologist. 

A 6 August 1986 report of mental status evaluation indicates that the applicant was mentally responsible and had the mental capacity to understand and participate in proceedings.

On 13 August 1986 the applicant’s commanding officer notified the applicant that he was initiating action to discharge him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.

The applicant consulted with counsel and stated that he understood the basis for the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He stated that he understood the nature and consequences of the general discharge that he might receive.  He submitted a statement from counsel, in which that person said that the applicant had a defect of the left eye, was complaining of diplopia and nystagmus, and reported a history of recurring headaches, motor weakness, and parathesias of the left side.  Counsel stated that the applicant was hospitalized and examined in July 1986 for those symptoms, and that he had a follow up appointment for an opthamology consultation.  Counsel stated that information was submitted to rebut the report of medical examination of 6 August 1986, which indicated clinically normal findings and no significant history.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for unsatisfactory performance.  That recommendation indicated that the applicant’s report of medical examination, report of medical history, counseling statements, and records of nonjudicial punishment, were included with the recommendation.

On 19 August 1986 the separation authority approved the recommendation and directed that the applicant receive a General Discharge Certificate.  The applicant was discharged on 27 August 1986.  He had 2 years, 11 months, and 27 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier; the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and morale; it is likely that the member will be a disruptive influence in present or future duty assignments; and the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military 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 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 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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 August 1986, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 August 1990.

The application is dated 2 October 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

___mvt__  ___kwl___  ___ew__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999032139	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000822	
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.