MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           7 June 2000                   
	DOCKET NUMBER:   AR1999032297

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P.Stueve		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 he had proper documentation from an orthopedic surgeon, but did not have the opportunity to go before a medical board.

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 3 years on 16 September 1976, completed training, and was assigned to an artillery unit in Korea.  He had continuous active service from his enlistment until his discharge in 1986, and attained the grade of E-5 in 1980.  He was reduced to pay grade E-4 in August 1985.    

The applicant was given a temporary profile on 6 June 1979 because of a fractured ankle.  He received a permanent profile on 10 July 1980 for ingrown facial hair.  

A 19 September 1983 physical profile record shows that the applicant had surgery to his right ankle and received a temporary profile as a result of that surgery.

A 23 January 1984 physical profile record shows that the applicant had a temporary T3 profile because of an arthrotomy to his right ankle.

A 27 August 1985 report of mental status evaluation shows that the applicant’s behavior was normal, he was fully alert, fully oriented, and that his mood or affect was unremarkable.  He had the mental capacity to understand and participate in proceedings.

On 21 August 1985 the Physical Evaluation Board Liaison Officer (PEBLO) at Landstuhl Army Regional Medical Center in Germany notified the applicant’s commanding officer that the applicant’s medical fitness for further medical service was questionable, and his case would be referred to the Physical Evaluation Board (PEB) in Washington, D.C. for disability processing.  A             3 October 1985 note on that notification stated that the PEBLO understood that the applicant was pending some type of UCMJ action; consequently, the PEB must be provided clarification and disposition of such action.

On 17 September 1985 the applicant’s commanding officer informed the applicant that he intended to recommend that the applicant be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  That official stated that the applicant had numerous acts of misconduct, to include possession and use of illegal drugs, continuous absences from his appointed place of duty, drunk on duty, missing Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) appointments, repeated family disturbances, recurrent nonjudicial punishments under Article 15, UCMJ, and substandard duty performance.

The applicant consulted with counsel, stated that he had been advised of the basis for the contemplated action, its effect, the rights available to him, and the effect of any action in waiving his rights.  He waived consideration of his case by a board of officers and declined 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 25 September 1985 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged for misconduct.  That official submitted 41 enclosures with his recommendation, showing numerous counseling statements (performance counseling, counseling concerning marital problems, counseling for failure to be at his place of duty), notifications of dishonored checks, a letter of warning for a domestic disturbance incident, a letter to the commanding officer requesting help for child support (from the mother of the applicant’s child), records of four nonjudicial punishment actions, copies of urinalysis tests, and so on.  Those enclosures are contained in the applicant’s record.

The separation authority approved the recommendation on 2 October 1985 and directed that the applicant be issued a General Discharge Certificate.

On 30 October 1985 the commander of the Landstuhl Army Regional Medical Center requested that the applicant be extended on active duty until completion of medical treatment.  The applicant himself requested retention on active duty beyond his scheduled ETS (separation date) for the purpose of completing physical disability evaluation.  On 14 November 1985 that request was approved, with the proviso that the applicant would be retained on active duty for a period not to exceed 90 days from his normal ETS of 15 November 1985.  

Orders were published transferring the applicant to the separation transfer point at Fort Jackson, South Carolina, with a reporting date of 11 February 1986, and a discharge date of 12 February 1986.  The applicant was AWOL on                       11 February 1986.  He returned to duty on 13 February 1986.  The applicant was discharged for misconduct – drug abuse, on 14 February 1986.  He had 9 years, 4 months, and 29 days of service.   
On 11 May 1987, in an unanimous decision, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.  It did determine that the reason for his discharge was improper and directed that the reason be changed to misconduct – pattern of misconduct.  On 26 June 1987 his DD Form 214 was changed accordingly. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

Paragraph 1-34 that regulation states, in pertinent part, that medical examinations are required for soldiers being separated per chapter 14, section III, acts or patterns of misconduct (to include commission of a serious offense), and that when a soldier is to be processed per chapter 14, section III, the unit commander must ensure that an appropriate mental status evaluation is obtained in addition to the medical examination.

Paragraph 1-26 states in effect, that a soldier may only be considered for retention past his set release date when continued health care is required and/or physical disability processing is required or has been initiated.  The soldier must request retention.  The medical facility commander sends the request to the nearest military commander exercising general court-martial convening authority for approval.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status.  A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

Army Regulation 635-40, paragraph 3-2b states in pertinent part 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.  

Army Regulation 635-40 provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be
referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial
to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

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.

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 14 February 1986, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 14 February 1989.

The application is dated 1 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

___mkp__  ___jps__  ___esc___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999032297	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
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.