MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           28 AUGUST 2001                 
	DOCKET NUMBER:   AR2001059911

	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. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, 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, physical disability retirement or discharge.  

The applicant states that he was unfit or unable to perform his duties and should receive a 30 percent service connected disability rating.  He requests that the Board excuse his failure to timely file his application as he has only recently learned that he could file.  He has been incarcerated for 19 years. 

He states that the policies under which he was discharged are different from current policies and he would have received a more fair discharge under today’s standards.  He states that his physical and mental capacity to serve was impaired by abuses of authority.  He states in effect that the records omitted his cooperation in an undercover drug operation for a CID task force, and he describes the climate at Fort Campbell, the drug problems in his unit, and the threats to himself.  He states that his commanding officers and fellow soldiers contributed to destroying his mental health.  He states that while he was responsible for his own drug and alcohol addition, he was traumatized by his commanding officer’s decisions and by the harassment from his fellow soldiers.  He requested transfer to another unit, but his request was not granted. 

He states that he fell from a vehicle and injured his left leg and knee, and still has problems.  He states that he injured his back while lifting a heavy container and he smashed his thumb while moving a wall locker.  He states that he was diagnosed with having a seizure disorder and that he had chest and lung problems and breathing difficulties, later diagnosed as bronchitis and asthma.  He uses an inhaler and has been given breathing treatments.  He is currently taking drugs for his nerves and to assist him in sleeping.  He also takes a drug for his high blood pressure.  He has fallen arches, pain in the arch, the ankle, and calf muscles.   

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 for three years on 12 November 1973, completed training and in March 1974 was assigned to an artillery battery at Fort Campbell, Kentucky.

The applicant’s medical records show that he was treated for an acute upper respiratory infection on 14 December 1973.  He was seen on 8 May 1974 for nearly passing out and his condition was diagnosed as acute gastroenteritis.  
On 24 July 1974 he was treated for a back strain, incurred from lifting heavy boxes.  He was treated on 23 August 1974 for a smashed thumb sustained while moving wall lockers.  On 17 October 1974 he was seen because he had passed out on 14 October 1974.  The record indicates that he had a seizure disorder.  On 12 November 1974 he was treated because of a bruised elbow.  He was seen on 2 August and 5 August 1975 for chest pain and shortness of breath.  On 2 September 1975 he was treated because he had bumped his knee.  He was given a temporary profile for 21 days because of a contusion to his left knee.

The applicant’s records also show that he received nonjudicial punishment under Article 15, UCMJ, on six separation occasions for five periods of AWOL and for disobeying a lawful command on one occasion.  The records show that he had been counseled on seven occasions because of his AWOL, and his failure to be at his place of duty.  

On 15 December 1975 the applicant’s commanding officer notified the applicant that he intended to recommend that he be eliminated from the Army under the provisions of Army Regulation 635-200, chapter 13, for unsuitability.

The applicant consulted with counsel and stated that he understood the basis for the contemplated action, its effects, the rights available to him and the effect of any action taken by him in waiving his rights.  He waived consideration of his case by a board of officers and did not submit a statement in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive.

A 17 December 1975 report of medical examination is signed by a physician, but does not indicate whether or not the applicant was qualified for separation.  In the report of medical history that the applicant furnished for the examination, he stated that he was in good health and not taking any medication.  A report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  He met the medical standards for retention in the Army.

The applicant’s commanding officer recommended that the applicant be eliminated for unsuitability.  On 17 December 1975 the applicant’s battalion commander recommended approval of that recommendation and stated that the applicant had served poorly under three commanders even though he had been given every opportunity and break.  He stated that he had personally counseled the applicant and tried to encourage him to do his best, to no avail.

On 31 December 1975 the separation authority approved the recommendation and directed that the applicant be furnished a General Discharge Certificate.        The applicant was discharged on 13 January 1976.  He had 2 years, 2 months, and 2 days of service.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that
time, applied to separation for unfitness and unsuitability.   Paragraph 13-5b (3) provided for the separation for unsuitability of those individuals because of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations is no bar to discharge for unsuitability.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire 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 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.

There is no evidence, nor has the applicant provided any, to indicate that his discharge was unfair or unjust, or that he was physically unfit at the time of his discharge, and as such there is not basis to grant his request for physical disability retirement or discharge.

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 13 January 1976, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 January 1979.

The application is dated 5 October 2000 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.  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

________  ________  ________  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.