MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 MARCH 2002                   
	DOCKET NUMBER:   AR2001062619

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge		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 under severe pain and anxiety while in the service, that he complained of headaches and blackouts along with pain in his back, spine and neck, and was given no medical help.  He states that he believes he was evaluated by a counselor and not a doctor, that the individual who evaluated him was not practicing at a hospital but had come to the barracks and told him he would be receiving a medical discharge with at least a 30 percent disability, because the Army only wanted healthy soldiers.  The applicant 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:

On 20 June 1978, he enlisted in the Regular Army for a period of 4 years.

On 6 December 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for 
disobeying a lawful order, for being absent without leave (AWOL) from
1 November to 10 November 1979, and failure to go on two occasions to his appointed place of duty.  His punishment was reduction to pay grade E-2, forfeiture, restriction, and extra duty. 

On 13 December 1979, the applicant accepted NJP under the provisions of Article 15, UCMJ for damaging Government property by punching a hole in a hallway wall.  His punishment was forfeiture, extra duty, restriction and reduction to pay grade E-1 (suspended for 60 days).

On 10 April 1980, the applicant’s unit commander advised the applicant that he was initiating action to separate him from military service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and apathy.  The applicant acknowledged notification of his commander’s intent.  

On 15 April 1980, a mental status evaluation and a medical examination cleared the applicant for separation.

On 25 April 1980, the applicant consulted with legal counsel and submitted a statement in his own behalf, which he stated that he had set a goal to start over in civilian life, that he needed to get a better education, and felt that he had not been totally bad, but had problems adjusting to the chain of command.  He felt that he had served his country for two years, that he trained hard and to the best of his ability and deserved an honorable discharge. 

On 30 April 1980, the appropriate separation authority waived rehabilitation and approved the applicant’s separation, and directed the issuance of a general discharge certificate.

On 6 May 1980, the Staff Judge Advocate determined that the discharge action was legally sufficient.

On 27 May 1980, the applicant was separated under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and apathy.  His DD Form 214 (Certificate of Release or Discharge form Active Duty) indicated he had 1 year, 10 months and 28 days of active service and 9 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. 

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

There is no evidence in the applicant’s available record to substantiate his claim that he had an unfitting disability which required physical disability processing, or that he was told he would be receiving a medical discharge.  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 27 May 1980, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 27 May 1983.

The application is dated 10 August 2001 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

___SLP _  __SK ___  __EJA___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062619	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020319	
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.