APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.  He states that he is now receiving supplemental security income benefits for black lung disease and other disabilities, and that he believes that the black lung disease came from his exposure in working with asbestos while stationed at Fort McPherson, Georgia.  

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 15 January 1968, completed basic training and in March was assigned as a plumber to Fort McPherson, Georgia.

On 10 September 1968 the applicant was arraigned, tried, and convicted of AWOL from 10-26 July 1968.

On 13 February 1969 the applicant was arraigned, tried, and convicted of AWOL, disobeying a lawful command, and communicating a threat, and sentenced to confinement for six months.    

The applicant’s records show that he received nonjudicial punishment under Article 15, UCMJ, on three occasions for being absent from duty and for failure to report to his prescribed place of duty.

On 3 September 1969 the applicant’s commanding officer recommended that the applicant be barred from reenlistment because of his record of nonjudicial punishment under Article 15, UCMJ, on three occasions; and one summary and one special court-martial.  That recommendation was approved on 26 September 1969.


A 19 September 1969 report of psychiatric evaluation indicates that the applicant had no significant psychiatric illness and that he was cleared for any administrative action deemed appropriate.

A 30 September 1969 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 that the applicant furnished for the examination, he stated that he was in excellent health.

On 2 October 1969 the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial for two periods of AWOL and for disobeying a lawful order, which could lead to a bad conduct or dishonorable discharge.  He stated that he understood that he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He elected not to make a statement in his own behalf.

On 28 October 1969 the separation authority approved his request and directed that the applicant receive an Undesirable Discharge Certificate.

A statement of medical condition signed by the applicant on 13 November 1969 indicates that he had no change in his medical condition since his last medical examination.  The applicant was discharged on 13 November 1969 at Fort Meade, Maryland, under the provisions of Army Regulation 635-200, chapter 10.  He had 1 year, 3 months, and 11 days of service, and 198 days of lost time. 

On 27 June 1974 the applicant was notified that the Army Discharge Review Board had denied his request to upgrade his discharge.

On 31 October 1979 the applicant was notified that the Army Discharge Review Board had again denied his request to upgrade his discharge.  On 3 May 1980 the Army Discharge Review Board, in an unanimous opinion, denied the applicant’s appeal.


A 20 June 1996 VA medical report indicates that the applicant probably had cirrhosis, chronic obstructive pulmonary disease, probably has peptic ulcer disease, and probably has some alcoholic gastritis.  He has a history of alcohol as well as tobacco abuse.  He has a history of obstructive pulmonary disease, however, his shortness of breath when he exerts himself could be the result of asbestosis.  The VA has yet to decide upon the applicant’s claim for VA disability benefits.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 635-40, paragraph 1-2, provides that a
member who is charged with an offense for which he could
be dismissed or given a punitive discharge may not be
referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial
jurisdiction dismisses the charge or refers it for trial
to a court-martial which cannot adjudge such a sentence,
the case may be referred for disability processing. 
When forwarded, the records of such a case must contain
a copy of the action signed by the court-martial
authority who made the decision.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
13 November 1969, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 13 November 1972.

The application is dated 7 November 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