MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 APRIL 2003                  
	DOCKET NUMBER:   AR2002078243

	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:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Harry B. Oberg		Member	
	Mr. Ronald J. Weaver		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 separation or retirement.  The applicant states that he accidentally wounded a soldier in basic training, and that during advanced individual training a fellow soldier set him up and his commander found pot in his possession; and, that because of these two incidents, when he arrived in Germany his new commander asked him to sign discharge papers, which he refused to do.  Because he refused to sign the discharge papers his commander made things difficult for him by assigning him tasks that other soldier did not have to do, and by applying pressure on his fellow soldiers and platoon sergeant to disassociate themselves with him.  He also states that a fellow soldier, on orderly duty, brutally attacked him with his commander’s knowledge, and that the repeated head slams by the orderly put him in a coma for 10 days.  While in Germany his life was threatened by a medical doctor because of his refusal to sign discharge papers.  He feels he was denied a medical discharge because it would have opened up a case of attempted murder and conspiracy to commit murder.  In support of his request the applicant submits copies of a psychological evaluation, his request for social security benefits, and several claims for damages to person or property filed with the County of Los Angeles for his being charged with drunk driving, and for unlawful arrest procedures, to wit his being injected with an unknown solution and the repeated brutal use of an electrical devise on his body.  

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 in the Regular Army on 11 January 1977 for a period of
3 years.  He completed basic combat training a Fort Leonard Wood, Missouri, and advanced individual training at Fort Benning, Georgia.  He was awarded the Military Occupational Specialty (MOS) IIB (Infantryman) effective 9 June 1977.

He served in Germany from June 1977 to January 1979.

Between September 1977 and November 1978 he received four nonjudicial punishments for the wrongful possession of marijuana, disobeying a lawful order to not bring beer into the building, and for being intoxicated and incapacitated for duty.  His punishments included reduction (suspended for 
2 months), forfeitures, extra duty and restrictions.  

The applicant was referred to an Alcohol and Drug Abuse Prevention and Control Program for the personal abuse of alcohol, which was later amended to include drug abuse.  On 21 November 1978 he was determined to be a rehabilitative failure.  

On 18 December 1978, the applicant was issued a bar to reenlistment certificate because of his numerous records of non-judicial punishments.

On 18 December 1978, the applicant was notified by his unit commander that he was initiating action to discharge him from the Army, under the provisions of Army Regulation 635-200, chapter 9.  

On 18 December 1978, the applicant acknowledged his commander’s intent to discharge him and elected to waive his rights to a psychiatric evaluation, to consult with counsel and to submit statements on his own behalf.   

On 16 January 1979, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 9, for alcohol or other drug abuse.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 2 years and 6 days of active service. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  

In April 1999, a Psychological Evaluation concluded that the applicant’s functioning was severely impaired in many areas, to include abstract thinking, problem-solving, motor speed, spatial-motor skills, incidental memory, and some sensory abilities.   These deficits were determined to be significant enough to account for much of his difficulty in obtaining and holding jobs.  The physician could not say for certain how much of his cognitive difficulties may have been lifelong, but neuropsychological testing did suggest that he had some form of organic impairment, perhaps from his head injury, was likely. 

The applicant’s May 2002 claims for Social Security and Supplemental Security Income (SSI) disability benefits were denied.  It was determined that he was not disabled, nor was his condition severe enough to keep him from working. 

The applicant’s 18 January 2002, Claim for Damages to Person or Property, filed against the County of Los Angeles for unlawful arrest procedures, to wit, his being injected with an unknown solution and the repeated brutal use of an electrical device on his body by the Los Angeles Police Department was denied.

The applicant’s 23 June 2002, Claim for Damage, Injury, or Death, filed with the United States Attorney for the Central District of California, for a medical condition, that cause him to be arrested for what seems to be drunk driving and his incarceration for 14 months, was returned without action.

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.  The applicant 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 16 January 1979, the date of the applicant’s separation.  The time for the applicant to file a request for correction of any error or injustice expired on 16 January 1982.

The application is dated 30 June 2002 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

__WTM  _  ___HBO_  __RJW  _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002078243	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030417	
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.	108.00	
2.		
3.		
4.		
5.		
6.