APPLICANT REQUESTS:  Correction of his military records to reflect disability retirement.  He states at the time of his separation from active duty he met the criteria for disability retirement because he was “unfit to continue military duties due to line of duty combat injuries....”  he notes his injuries “manifest to degree greater than 20%” and that he had less than 20 years of active service at the time of his separation.

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 and entered active duty on 24 July 1967.  he was trained as an infantryman and assigned to Vietnam in January 1968.

On 23 February 1968 he sustained multiple fragment wounds to his “left upper extremity, right lower extremity and abdomen” as a result of enemy action.  He was initially treated on board the USS Sanctuary and then evacuated to Japan before being transferred to Walter Reed Army medical Center in March 1968 for further therapy.

He was discharged to duty with a 90 day temporary profile on 3 December 1968.  The hospital discharge document notes that “all wounds and fractures are healed.  There is normal gait and full range of motion of the joints...nerve palsy is returning.  There is normal passive range of motion of the left upper extremity.”

Following the applicant’s return to duty he was briefly assigned duties as a driver at Fort Jackson, South Carolina prior to being reclassified as a personnel specialist on 
26 February 1969.

The applicant’s conduct and efficiency ratings as a personnel specialist were excellent and on 23 July 1969 he requested a 3 month extension of his service commitment because he was “considering reenlisting.”  The applicant’s 
request was approved and he continued to successfully serve as a personnel specialist until 23 October 1969, he scheduled date for release from active duty.

A physical examination, conducted on 8 October 1969, noted the applicant’s P-3 profile but concluded the applicant was medically qualified for separation.  He was not referred for disability processing.

According to documents in the applicant’s VA file, subsequent to his release from active duty he worked for two years as an assistant plant manager in a fertilizer factory before obtaining better employment with the New York Highway Patrol where he functioned as a state trooper for 15 years.  he left his position as a trooper “due to the ongoing stress of his profession as well as his desire for change in his employment.”  he worked for slightly more than 4 years as an administrator for a food company and until June 1994 worked as a therapy aide for a psychiatric center.

In February 1970 the applicant was granted a combined 30 percent disability rating by the VA for residuals of his gunshot wound.  As of 1996 the applicant’s VA disability rating had been increased to 80 percent (PTSD independently rated at 50 percent).

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.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

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 ***.  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     , the date      .  The time for the applicant to file a request for correction of any error or injustice expired on      .

The application is dated         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