MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           22 August 2000                   
	DOCKET NUMBER:   AR1999033014

	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 retirement or separation.  He also requests that his DD Form 214 be corrected to show that he was a high school graduate.

The applicant states that he acquired a GED (General Education Diploma) during basic training.  He stated that his discharge for unsatisfactory performance should be reevaluated.  Recent psychological diagnosis would have changed his discharge if the doctors at Fort Polk had realized his condition.  He states that it was not until he was hospitalized in March of 1999 that he realized he had psychological problems.  He now realizes his actions while at Fort Polk were a direct result of his medical problems.  

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 three years on 30 July 1985, completed training, and in January 1986 was assigned to the 45th Chemical Company at Fort Polk, Louisiana, as a smoke generator operator. 

The applicant was counseled on nine occasions for various reasons to include failure to meet standards for inspection; purchasing a privately owned vehicle; operating a privately owned vehicle without registration, insurance, or a post decal; operating the vehicle after being directed not to do so; job performance, appearance, and military courtesy; disobeying orders; disrespect to an NCO; and cashing a check at the post exchange without having sufficient funds.

A 22 April 1986 report of mental status evaluation indicates that the applicant was mentally responsible, and had the mental capacity to understand and participate in board proceedings.  He was psychiatrically cleared for any administrative action deemed appropriate.

A 30 April 1986 report of medical examination shows that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history that he furnished for the examination, the applicant stated that he was in good health.

On 1 May 1986 the applicant received nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful command and for breaking restriction.

On 5 May 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, paragraph 13.  The applicant consulted with counsel, and stated that he understood the basis for the contemplated action, its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He 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.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged.  

In a 7 May 1986 memorandum for record, the applicant’s commanding officer indicated that the applicant admittedly did not listen to advice or counsel, as reflected in his general attitude and manner of duty performance.  He stated that the applicant had frequent incidents which reflected his immaturity, the most recent was the deliberate breaking of a padlock from the unit underground fuel storage tank while he was on guard duty.  He stated that the applicant recently battered the outside surfaces of his newly purchased status car with a tire iron when it wouldn’t run properly, after being driven into a ditch, while his wife and a 12 year old neighbor girl were in the car.  He was recently evicted from his residence for loud and disorderly parties.  

That officer continued by saying that the applicant continued to be excessively indebted and unable to pay for the necessities of off post living.  Against the advice of personnel in his chain of command, he brought his new wife to Fort Polk.  Shortly thereafter, he and his wife were counseled; and he was strongly urged not to buy another status car, as it would only leave him $185.00 per month for living expenses.  He purchased the car anyway.  That officer stated that the applicant had said he would do whatever was necessary to get “kicked out” of the Army.  He stated that the applicant had been devastated by his personal tragedy.  He had no feeling of self worth or self confidence to continue as a soldier.    

On 14 May 1986 the separation authority approved the recommendation and directed that the applicant receive a General Discharge Certificate.  The applicant was discharged on 23 May 1986.  He had 9 months and 24 days of service.

There is no evidence contained in the applicant’s record that he completed the requirements for a high school diploma or the equivalency thereof.  His personnel qualification record of 4 March 1986 shows that he had 2 years of high school education.   
The applicant’s record is absent any medical information or evidence to show a personality disorder or a psychological problem.   

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, or 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 as amended, 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 23 May 1986, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 May 1989.

The application is dated 27 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	AR1999033014	
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.  189	142.00	
2.	108.00	
3.	100.00	
4.		
5.		
6.