MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           18 OCTOBER 2001
	DOCKET NUMBER:   AR2001058411

	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. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer 		Member	
	Ms. Barbara J. Ellis		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:  That he be medically retired or separated.  He states that he was discharged from the military “for being unable to perform the tasks required as a soldier.”  He notes this “inability” was due to a “medical condition” which was “caused” while he was performing “military required functions.”  He states the condition continued to worsen and is still a problem.  He submits no evidence 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:

He entered active duty on 2 September 1986.  He successfully completed basic and advanced individual training.  In February 1987 he was assigned to Fort Lewis, Washington.

In September 1989 the applicant’s commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200, paragraph 14-12a, for minor disciplinary infractions.  His commander cited several records of counseling and his inability or unwillingness to meet acceptable standard as the basis for his recommendation.  

The applicant acknowledged receipt of the proposed separation, consulted with counsel, and waived his attendant rights.

The recommendation was approved.  On 3 October 1989 the applicant was discharged under honorable conditions.

The applicant’s DA Form 2A (automated personnel qualification record) indicates he had a physical profile of 1-1-1-1-1-1 and a physical category code “A.”  His available records contained no other medical information.

Army Regulation 635-200 provides for the administrative separation of soldiers.  Paragraph 14-12a states that soldiers are subject to separation for a pattern of misconduct consisting solely of minor military disciplinary infractions.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this provision.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

Army Regulation 635-40, which establishes the policies and procedure for the separation or retirement of soldier’s by reason of physical disability states that soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.  

Army Regulation 635-40 also states 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.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

There is no evidence, and the applicant has not provided any, that confirms he had a 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 3 October 1989, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 3 October 1992.

The application is undated but was received by the Board on 14 June 2001.  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.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __MHM__  __BJE__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001058411	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011018	
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.