MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           3 May 2000                   
	DOCKET NUMBER:   AR1999032556

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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, the applicant requests physical disability retirement or discharge.  

The applicant states that he was diagnosed with fibromyalgia six years before VA doctors concurred.  His disability first manifested itself during basic training, as evidenced by the near fail score on the grenade range.  The disease is slow and involves multiple joints.  He currently has a 10 percent disability rating because of his right knee condition.  He repeatedly reported fatigue and his inability to continue officer candidate school (OCS) because of his health problems.  He has not had substantial employment since he left the military.  He has had numerous symptoms, many of which overlap Gulf War syndrome. 

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 Wisconsin Army National Guard for 8 years on       17 October 1986.  He completed active duty for training and returned to his National Guard unit in Kenosha, Wisconsin on 3 July 1987.  He was accepted as an officer candidate and on 24 July was attached to the Wisconsin Military Academy at Camp Douglas to attend OCS.   

Medical records show that he was treated on 30 July 1987 because he complained of a sore right knee.  He first noticed the pain during the Army Physical Fitness Test (APFT).  He had some pain since the 26th of July.  The applicant was again seen my medical personnel for this same condition on         31 July, 1-4 August, and 6-7 August.  The 6 August medical record indicates that he had a slight swelling around the knee area, that he could do no running, but could participate in a forced road march. 

In an 8 August 1987 sworn statement, the applicant said that he hurt his right knee during a physical training session, and was told that he had strained his knee and should rest it for one day.  He was issued a pair of crutches; however, his knee was still tender and painful.  A statement of medical examination and duty status indicates that the applicant suffered a knee strain while participating in physical training on 4 August 1987, that his injury was considered to have been in line of duty; however, a formal line of duty investigation was required.     

A 23 August medical record indicates that he had no swelling to his knee.

A 10 October 1987 report of medical examination indicates that the applicant was medically qualified for appointment with a physical profile serial of 1 1 1 1 1 1.  The examining physician recommended that he have an orthopedic examination of his right knee.  In the report of medical history that he furnished for the examination, the applicant stated that he was in good health.  He did say that he did strain his right knee in July 1987, and was waiting for an examination and treatment by the VA.

On 4 March 1988 the applicant was referred to the VA hospital in Milwaukee for evaluation and physical therapy of his right knee.

On 14 March 1988 the approved line of duty investigation was forwarded to the Wisconsin Military Academy; however, the results of that investigation are not included with the applicant’s records.  The document forwarding that investigation did indicate that any medical bills resulting from injuries/diseases that were incurred during authorized periods of training would be processed by the USPFO for Wisconsin, and that payment from federal funding might depend upon final line of duty findings. 

On 14 March 1988 the applicant was relieved from the Wisconsin Military Academy as an officer candidate.

The applicant was reduced because of inefficiency from the rank of Private First Class (PFC) to Private E-2 on 28 September 1988.  He was discharged from the Army National Guard on 29 September 1988 because of his unsatisfactory participation, and assigned to the Army Reserve Control Group (Annual Training) at St. Louis.  He received a General (under Honorable conditions) characterization of service from the Wisconsin Army National Guard.     

The applicant was discharged from the Army Reserve on 18 October 1994.

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 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.  

That paragraph goes on to say 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 18 October 1994, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 18 October 1997.

The application is dated 17 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

___ewl__  ___rvo___  ___jhk___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999032556	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000503	
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.