APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.  He states that he has post traumatic stress disorder (PTSD) and psychological problems. He states that he has had drug and alcohol problems since 1971.  He reenlisted in 1977 and was discharged in 1978.

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 29 March 1968 and was released from active duty on 21 March 1971. His character of service was honorable.  He had 2 years, 11 months, and 
23 days of service.

On 7 February 1978 the applicant reenlisted for four years, completed training as a clinical specialist and was assigned to a medical unit in Germany.

On 18 May 1978 the applicant received nonjudicial punishment under Article 15, UCMJ, for possession of marijuana.

The applicant was counseled on seven separate occasions from May through August of 1978 concerning his poor attitude and conduct, appearance, and substandard performance of duty.

On 14 August 1978 the applicant voluntarily entered an alcohol and drug abuse prevention and control program.  He was in that program until 17 September 1978 and was counseled on five occasions.  The applicant’s progress report indicates that the applicant continued to use drugs as a way of coping with his problems, was not responsive to counseling and lacked motivation to effectively deal with his emotional difficulties.  The counselor and the applicant’s commanding officer stated that the applicant was a rehabilitation failure.

A 30 August 1978 report of medical examination indicates that the applicant 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 his health was good.

A report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention.

On 3 October 1978 the applicant’s commanding officer recommended that the applicant be eliminated from the Army under the provisions of Army Regulation 635-200, chapter 9, because of his continued abuse of drugs and lack of desire for successful rehabilitation.  The applicant acknowledged receipt of this action, stated that he did not want a legal counsel, and would not submit statements in his own behalf.

On 4 October 1978 the separation authority approved the recommendation and directed that the applicant receive an Honorable Discharge Certificate.  The applicant was discharged at Fort Dix, New Jersey on 19 October 1978.  He had 8 months and 13 days of service.

On 26 June 1979 the VA denied the applicant’s claim for service connected disability because of a nervous condition.

A 24 May 1995 VA medical report for PTSD indicates that the applicant stated that he was an ambulance attendant and saw multiple accident victims; and that he referred somewhat obliquely to “freaking out” because of concerns of being sent to Vietnam.  

On 3 October 1995 the VA denied the applicant’s claim for service connected disability for PTSD.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 9-2 of that regulation states, in effect, that a soldier enrolled in the alcohol and drug abuse prevention and control program may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program when there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.
Paragraph 9-4 of the aforementioned regulation states that the service of soldiers discharged will be characterized as honorable or under honorable conditions.

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 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 635-40, paragraph 3-2b (2), 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.

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.  That official stated that there was no evidence to support the applicant’s claim for a physical disability retirement.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
19 October 1978, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 19 October 1981.

The application is dated 25 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