APPLICANT REQUESTS: In effect, disability separation or retirement. She states, in effect, that she has been unable to obtain VA benefits because her separation document does not reflect that she was honorably discharged for medical reason.
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 active duty on 4 March 1975. On
11 March 1975, after reporting for basic training at Fort Jackson, South Carolina, the applicant was seen by an opthomalogist for evaluation of basic training eligibility and a waiver rights based on a vision problem. The attending physician concluded, however, that the applicant suffered from high myopia and recommended referral for disability processing.
On 14 March 1975 the applicant requested separation for physical reasons which existed prior to [her] enlistment in the Army. She noted she had been near-sighted for approximately 20 years prior to her enlistment. She waiver her right to counsel and indicated she did not desire to be present for the medical board hearing in her case.
The medical board concluded that the applicants high myopia existed prior to her entry on active duty and was not aggravated by her brief period of service. The board recommended she be separated from the service for a condition existing prior to service under the provision of Army Regulation 635-200.
The boards findings and recommendations were approved and on 21 March 1975 she was honorably discharged. At the time of her separation she had completed 18 days of active Federal service. The separation document (DD Form 214) contained in the applicants file indicates in the remarks section (item 27) that she was separated for not meeting medical fitness standards.
Army Regulation 635-40, paragraph B-10, provides that hereditary, congenital and other EPTS conditions frequently become unfitting through natural progression and should not be assigned a disability rating unless service aggravated complications are clearly documented or unless a soldier has been permitted to continue on active duty after such a condition, known to be progressive, was diagnosed or should have been diagnosed.
Army Regulation 635-40, paragraph 4-19 (4a), provides that individuals who are unfit by reason of physical disability neither incurred nor aggravated during any period of service will be separated for physical disability without entitlement to benefits.
Army Regulation 635-200 provides that members who are not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be separated.
Information from the VA indicates that individuals who served on active duty after 4 August 1964 and prior to 8 May 1975 are eligible for housing loan if they were discharged under conditions other than dishonorable and served a total of 90 days of service unless discharge early for a service-connected disability. The applicant was discharged for a pre-existing medical. Determination of eligibility requirements for VA benefits, including housing loans, is strictly within the purview of that agency. Questions or disagreements concerning those requirements are more appropriately address to 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 21 March 1975, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 21 March 1978.
The application is dated 10 September 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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