MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            26 September 2000 
	DOCKET NUMBER:   AR1999034477

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		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 in June 1994 he was told that he had glaucoma and has continued to suffer from knee and back problems which occurred while he was on active duty. In support of his request he submits copies of his VA and service medical records.

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 entered active duty in May 1981 and served continuously until he was voluntarily discharged on 16 February 1994 under the Army’s Early Separation Program.  He received more than $36,000 in separation pay.

The applicant’s service medical records indicate that he complained of lower back pain as early as 1983 and of painful knees as early as 1988.  He was seen by medical personnel for both conditions on several occasions while on active duty.  There is no indication he was ever issued a permanent physical profile for either condition and his performance evaluation reports indicate he consistently passed the Army’s annual physical fitness test, including one in February 1993.

His service medical records indicate that a 1983 ophthalmology examination indicated the presence of suspected glaucoma but there is no indication the condition ever affected his ability to perform his military duties.

The applicant was promoted to pay grade E-5 in September 1985 and on 
16 February 1994 was honorably discharged under the Army’s Early Separation Program.  His separation physical examination indicated he was medically qualified for separation with a physical profile of 1-1-1-1-1-1.  

Immediately following his separation from active duty he enlisted in the U.S. Army Reserve (USAR) and in October 1994 passed an annual physical fitness test.  In 1995, however, he was released from his Troop Program Unit and transferred to the USAR Control Group (Reinforcement) as a result of unsatisfactory participation.

His VA medical records indicate that as of 1997 he was being compensated by the VA for his knee condition (20 percent), back strain (10 percent) and glaucoma (10 percent).

Army Regulation 40-501, paragraph 3-3b(1), 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 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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 16 February 1994, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 16 February 1997.

The application is dated 26 November 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

__aao___  ___mhm__  ___tfb__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999034477	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000926	
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.