APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.  He states that he was undergoing processing for a medical discharge after spending most of his service time in the hospital for lung infections.  He also had an emotional breakdown on the last day he was in the hospital.  He has had lung infections and mental problems since.  He states that he is a mental health patient, is on medication, and his last lung infection in October 1994 caused him to miss work for two weeks.     

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 Army Reserve on 
23 October 1981 and was ordered to active duty for training, entering active duty on 3 November 1981 at Fort Dix, New Jersey.

The applicant was hospitalized on 25 November 1981 and released on 3 December 1981.  He was discharged with no physical limitations.  He was hospitalized on 
9 December 1981 and released on 15 December 1981.

On 13 January 1982 the applicant was recycled in order for him to complete training.
 
The applicant was hospitalized on 21 January 1982 and released from the hospital on 31 January.  He was hospitalized again on 9 February 1992 and his condition was diagnosed as pneumonia and bronchitis.  He was discharged on 16 March 1982 and instructed to do no strenuous exercise, running, stooping, or crawling for 10 days.

A 26 February 1982 report of psychiatric/psychological evaluation indicates that the applicant had been hospitalized four times for upper respiratory infection and was recycled.  The applicant became depressed and missed home.  The applicant was immature and completely unmotivated to finish training.  He did not have the stamina to become a good solider.  Due to the nature of his problem, the applicant was not likely to benefit from further training, transfer or treatment.  He had an adjustment disorder and an immature personality.  The applicant met the medical standards for retention in the Army, and was psychiatrically cleared for any administrative action deemed appropriate.

The applicant was counseled on five occasions for his lack of motivation, lack of self discipline, and poor attitude. 

On 18 March 1982 the applicant stated that he understood that he was not required to undergo a medical examination for release from active duty, and that if he elected not to undergo a medical examination, he understood that his medical records would be reviewed by a physician; and if the review indicated that an examination should be accomplished, he would be scheduled for one.  The applicant stated that he did not desire a medical examination.  On that same date a medical officer stated that a medical examination was not required.

On 19 March 1982 the applicant’s commanding officer initiated action to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 5-33 (trainee discharge program), because of the applicant’s lack of motivation and desire to become a productive soldier.  The applicant consulted with counsel, and stated that he understood that VA and other benefits normally associated with completion of honorable service would be affected, because of noncompletion of requisite active duty time.  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.  On 23 March 1982 the separation authority approved that recommendation.  The applicant was discharged with an honorable characterization of service on 25 March 1982.  He had 4 months and 23 days of service. 


On 8 May 1984 the Army Discharge Review Board, in an unanimous opinion, denied the applicant’s request to change the character and reason for his discharge. 

Army Regulation 635-200 sets forth the basic authority
for separation of enlisted personnel.  Chapter 5 of the
regulation provided, at that time, for the
administrative separation of individuals who had
demonstrated during the first 180 days of training that
they lacked the necessary motivation, discipline,
ability or aptitude to become effective soldiers.  This
program, known as the Trainee Discharge Program,
mandated the award of an honorable discharge.

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 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 635-40 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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
25 March 1982, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 25 March 1985.

The application is dated 16 April 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