MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 August 1999     
	DOCKET NUMBER:   AR1999014763

	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. Loren G. Harrell		Director	
	Ms. Gale Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Arthur A. Omartian		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, disability retirement or separation.  The applicant states that he was injured while on active duty and believes he should have a medical discharge.  The applicant submits copies of medical documents in support of his request 

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:

On 13 July 1978, he enlisted in the Regular Army for a period of 3 years.  Following successful completion of basic and advanced individual training at Fort Bliss, Texas, he was assigned to Fort Polk, Louisiana and then Germany, in the military occupational specialty (MOS) 13B (Cannoneer).

On 19 November 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ) for disobeying a lawful order and being disrespectful in language to a superior noncommissioned officer.  His punishment  was reduction, forfeiture, extra duty, and restriction.

On 4 December 1979, he accepted NJP under the provisions of Article 15, UCMJ for the possession of marijuana.  His punishment was reduction, and confinement for 30 days at the correctional facility.

On 8 December 1979, his company commander initiated action to bar the applicant from reenlisting because of two nonjudicial punishments, and his 
lack of motivation and respect for authority.

On 18 December 1979, he accepted NJP under the provisions of Article 15, UCMJ for having in his possession a smoking device containing marijuana residue.  His punishment was forfeiture and extra duty.

On 27 December 1979, he accepted NJP under the provisions of Article 15, UCMJ for sleeping on guard duty.  His punishment was forfeiture, extra duty and restriction.

On 31 December 1979, the bar to reenlistment was approved. 

On 18 January 1981, a medical examination cleared the applicant for separation.
On 28 January 1981, his company commander notified the applicant that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program), with an honorable discharge certificate.  His proposed recommendation was based on the applicant’s lack of respect for authority, a lack of self-control, failure to adjust to the standards called for by the military and an unwillingness to correct his actions despite administrative and nonjudicial punishment imposed on several occasions.

The applicant voluntarily consented to the discharge and elected not to submit statements in his own behalf.

On 6 February 1981, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200,   chapter 5, and directed the issuance of an honorable discharge certificate.  

On 24 February 1981, the applicant was honorably discharged under the provisions of the above cited regulation.  His Report of Separation indicates he had 2 years, 7 months and 24 days of active Federal service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31 of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel because of unsatisfactory performance or conduct (or both).  This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service.

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.

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 635-40, paragraph 2-2b, as amended, 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.  The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

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 24 February 1981, the date the applicant was separated.  The time for the applicant to file a request for correction of any error or injustice expired on 24 February 1984.

The application is dated 29 April 1998 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

___mdm_  __aao___  __ewl___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999014763	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990805	
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. 110.02		
2.		
3.		
4.		
5.		
6.