APPLICANT REQUESTS: Physical disability retirement. He states that he was 100 percent disabled while hospitalized in Panama, and after being in an unlocked ward he was also doubly disabled spiritually, because of a physical disability.
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 was inducted into the Army on 24 March 1971 and assigned to Fort Jackson, South Carolina for training, where on 8 July he received nonjudicial punishment under Article 15, UCMJ, for failure to go at the time prescribed to his place of duty.
The applicant completed training and was assigned to Fort Benning, Georgia; thereafter to Fort Kobbe in Panama. On
3 November 1972 he was arraigned, tried, and found guilty by a special court-martial on two counts of disrespect to a superior NCO.
In April 1972 he was reassigned to Fort Riley, Kansas. A
6 March 1973 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. The applicant stated: I think Im in pretty good health.
The applicant was released from active duty on
26 March 1973. He had 2 years and 3 days of service.
A VA rating decision of 20 June 1988 indicates that the applicant was awarded a 70 percent disability rating for schizophrenia from 1 October 1983, increased to 100 percent from 30 October 1987, and decreased to 70 percent again from 1 December 1987. That percentage has since been increased to 100% and then decreased to 70% again from 1 June 1989.
A VA rating decision of 23 February 1995 shows that the applicant was awarded a 100 percent service connected disability for schizophrenia from 6 June 1990.
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 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.
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
26 March 1973, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 26 March 1976.
The application is dated 2 March 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
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