APPLICANT REQUESTS:  Disability retirement or separation.  He states he was “discharged with known disabilities; mental and physical.”

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 26 April 1977.  Following successful completion of basic and advanced individual training he was assigned to Germany as a supplyman in September 1977.

Prior to his departure for Germany the applicant was granted a temporary profile prohibiting strenuous physical activity as a result of a “tender bulge in R[ight] rectus muscle.”  The profile was extended for a 14 day period after the applicant arrived in Germany.  The temporary profile expired on 3 October 1977 and there is no indication another profile was ever granted.

In July 1978, after numerous counseling documents, beginning in October 1977, the applicant’s unit commander initiated action to administratively separate the applicant under the Expeditious Discharge Program.  His commander noted the applicant’s poor attitude, lack of motivation , repeated counseling and numerous minor infractions, was the basis for the elimination action.  The applicant acknowledged and voluntarily accepted the proposed separation after waiving his attendant rights.  His separation physical examination noted his abdominal condition but concluded he was medically cleared for separation with a physical profile of 
1-1-1-1-1-1.

The separation authority approved the proposed separation and on 24 July 1978 the applicant was honorably discharge from the Army with 1 year, 2 months, and 29 days of active Federal service.

Subsequent to his separation, in 1978, the applicant applied for disability compensation from the VA.  By 1995 the VA acknowledged two service connected conditions (residuals of a fractured toe and his abdominal rectus muscle condition) but concluded neither condition warranted disability compensation.

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, 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 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 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be voluntarily separated.  Such personnel were issued a general or honorable discharge as appropriate.

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 July 1978, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 July 1981.

The application is dated 18 February 1995 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

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director