APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.  He states that he should not have been discharged because he was an unfit soldier.  He had high blood pressure because of his military service and should have received a medical discharge.    

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 entered the Army on 10 June 1975, completed training and in October 1975 was assigned to an artillery unit at Fort Benning, Georgia.

On 30 July 1976 the applicant received a rehabilitative transfer from his artillery unit to another unit in the same battalion. 

On 12 August 1976 the applicant received nonjudicial punishment under Article 15, UCMJ, for possession of marijuana, failure to go to his place of duty, and for striking a fellow soldier.

A 9 November 1977 report of medical examination indicates that the applicant did have hypertension, however, he was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, he stated that he was taking medication for high blood pressure. 

On 6 December 1977 the applicant’s commanding officer initiated action to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 5-37, the expeditious discharge program.  That official stated that his reasons for this action was the applicant’s long record 
of misbehavior, disruptive actions, letters of indebtedness, and inability to adjust to military life.  The applicant continued to ignore sound medical advice and guidance to improve his health.  He had no promotion potential, and had a negative attitude toward superiors, his unit and the Army that repeated counseling failed to correct.

The applicant’s commanding officer listed numerous incidents involving the applicant including wrongful possession of marijuana, fighting while intoxicated, passing a bad check, refusing to obey an order, larceny, failure to go to his place of duty, mixing alcohol with the medication he was taking after being told not to do so, and missing his daily blood pressure monitoring on 15 occasions.

The applicant consulted with counsel and stated that he understood the nature and consequences of the general discharge that he might receive.  He elected not to make a statement in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged and that he receive a General Discharge Certificate.  On 
6 December 1977 the separation authority approved that recommendation.

On 14 December 1977 the applicant signed a statement to the effect that there had been no change in his medical condition since his last physical examination.

The applicant was discharged on 14 December 1977.  He had 
2 years, 6 months, and 5 days of active service.

On 6 July 1978 the VA indicated that the applicant had a service connected disability for hypertension, but that his rating for this disability was zero percent.  In May 1987 this rating was increased to 10 percent.  
 

On 12 April 1995 the VA increased the applicant’s service connected disability rating for hypertensive vascular disease from 10 percent to 20 percent.

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 separated.  Such personnel
were issued a general or honorable discharge, as
appropriate, except that a recommendation for a general
discharge had to be initiated by the immediate commander
and the individual had to consult with legal counsel. 

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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 635-40, paragraph 2-2b, as amended, 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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Medical Advisor to the DA Military Review Boards Agency.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
14 December 1977, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 14 December 1980.

The application is dated 2 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