APPLICANT REQUESTS:  In effect, that she be granted a service-connected medical discharge.  She states, in effect, that she was discharged on a medical discharge; that the Army said that it was not a service-connected condition; that the condition was present before; that she was sick with the condition before she entered the Army; that she never had the condition before; that she went in the Army right from high school; that she passed the Army physical with no problems; that the Army “OK’d” her for basic and school which she went to; that she was in over a year before she got sick; that, if the Army felt that she was sick in basic, they should have not let her continue to finish basic and go on to train in her military occupational specialty (MOS); that the Government is responsible for her getting sick; and that she has been trying to get the error corrected since she left the service in 1960, but no one would help her.

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 and medical records show:

The applicant was born on 9 April 1941.  She completed 12 years of formal education.  On 18 June 1959, she enlisted in the Regular Army, in pay grade E-1, for 3 years, with parental consent.  While in basic training at Fort McClellan, Alabama, her conduct and efficiency were shown as excellent/excellent.

A Clinical Record Cover Sheet, dated 21 July 1959, indicates that the applicant was hospitalized for 2 days at Fort McClellan; that the diagnosis was emotional instability reaction; moderate; manifested by poor control of hostility, with basic dependency and passivity, mild depression, impulsiveness, need for attention, and recent gesture of swallowing aspirin tablets; that the stress was unknown; that the impairment was moderate; that the predisposition was moderate, and that the line of duty was No, existed prior to service (EPTS).
On 27 August 1959, the applicant was transferred to Brooke Army Medical Center, Fort Sam Houston, Texas, for training in MOS 910.00 (Medical Corpsman).  She was advanced to pay grade E-2 effective 18 October 1959.

On 2 November 1959, the applicant’s commander forwarded a request that the applicant be evaluated for future military service.  She indicated that the applicant had a history of taking an overdose of pills at Fort McClellan during her basic training; that the applicant had been an average member of the unit until the evening of 1 November when she again made overtures towards suicide through use of razor blades and pills; and that the applicant was calmed down by her barracks sergeant but had upset the other women in her area.

On 4 November 1959, the applicant was relieved from attachment to her unit and reassigned to the Medical Holding Company, Brooke General Hospital.  She was hospitalized the same day and remained hospitalized for 185 days.

On 25 February 1960, the applicant was given a physical examination.  She was found not qualified for further military duty.  Her physical profile was 111124.

A Medical Evaluation Board (MEBD), dated 1 March 1960, found that the applicant had the following diagnosis:  schizophrenic reaction, n.e.c., (mixed type) , chronic, moderate, in partial remission; manifested by episodes of wildly aggressive behavior, auditory hallucinations, flat affect, and social withdrawal; that the external precipitating stress was minimal (routine military duty); that the premorbid personality and predisposition was severe (history of pre-existent mental illness of severe proportions); that the degree of psychiatric impairment was marked for military service; that the line of duty was no, EPTS; that her condition should be rated as (9004) dementia praecox, mixed type, in partial remission; that the impairment of social and industrial adaptability was definite; that the applicant was mentally competent to handle her own affairs and was not considered dangerous to herself or others; that the approximate date of origin was EPTS; that the cause of incapacity was not incident to service; that it existed prior to entry on active duty; and that it was not permanently aggravated by active duty.  The MEBD recommended that the applicant appear before a physical evaluation board (PEB) with counsel.  The MEBD indicated that the applicant was permanently unfit for further military service; that the degree of disability could be established; that the applicant had achieved maximum hospital benefits; that her transfer to a Department of Veterans Affairs (VA) facility was not required; and that the applicant’s motivation for duty was poor.

On 3 March 1960, an informal PEB found that the applicant was physically unfit to perform the duties of her office, rank, or grade by reason of physical disability which existed prior to entry into active service or was not service connected; that the diagnosis was dementia praecox, mixed type, in partial remission; that there was definite impairment of social and industrial adaptability; that the approximate date of origin or inception was EPTS; that it was not incurred or aggravated during active service in time of war or national emergency; that it was not the proximate result of the performance of her duties; that it was not aggravated by military service; and that it was not incurred in line of duty.  The PEB recommended that the applicant be separated from the service without entitlement to disability benefits.

On 3 March 1960, the applicant was advised of the opinion of the PEB that the disability EPTS and was not aggravated by service, and of her legal rights.  She concurred with the recommendations and waived a formal hearing of her case.

Orders, dated 3 March 1960, ordered the applicant, with her concurrence, to her home in New York to await further orders pending final action on the PEB proceedings by the Secretary of the Army.  The orders indicated that the period spent at home awaiting orders would be charged against creditable leave.

On 11 March 1960, the Army Physical Review Council forwarded the proceedings of the PEB regarding the applicant to The Adjutant General’s Office (TAGO), Department of the Army, recommending approval.  On 21 April 1960, the Office of the Surgeon General (OTSG), in response to an inquiry received from the TAGO, opined that the applicant had sufficient mental capacity to understand the nature and effects of entering into her enlistment contract on 18 June 1959.  On 27 April 1960, the PEB was approved by the TAGO by Order of the Secretary of the Army, and a message was sent to the authorities at Brooke General Hospital directing her immediate discharge.

The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that the applicant was honorably discharged, in pay grade E-2, on 7 May 1960, under Army Regulation 635-40A, paragraph 6, by reason of physical disability; that severance pay was not authorized; and that she had completed 10 months and 20 days active service.

Further significant events of the applicant's medical history, which are relevant to the issue in this case, are summarized in the attached comments from the OTSG.

On 8 July 1992, the VA notified a Member of Congress that the applicant required treatment for schizophrenic reaction within 1 month of entry into active service; that the Army determined that the clinical history given during and after service indicated the pre-existence of a neuropsychiatric disorder; that the VA denied the applicant’s claim in 1960 and confirmed that denial in 1964; that the decision was that the applicant’s condition was incurred prior to service and was not aggravated by military service beyond the normal progression of the condition; and that, while the service medical records showed that the applicant received electro shock therapy in November and December 1959, none of the medical evidence received in 30 years since her discharge showed any permanent residuals from such therapy.

On 5 August 1992, the Army Congressional Legislative Liaison Office notified the same Member of Congress that the applicant had the right to request a review of her case by this Board; and that advising her of her right to apply did not imply that an error or injustice occurred, nor did submission of an application ensure that a hearing would be 
held or that a favorable decision would be made.  An application (DD Form 149) was furnished the Member of Congress for the applicant’s perusal.

There is no evidence that the applicant made any effort to have the alleged error or injustice corrected by the Army prior to this application.

Army Regulation 635-40A, paragraph 6, then in effect, provided that, when it was determined that the member had incurred a physical disability which rendered the member unfit and which was determined to have resulted from the member’s intentional misconduct, or willful neglect, or was incurred during a period of unauthorized absence, or was a disability which existed prior to the member’s term of active service and not permanently aggravated as a result of active service, such member would be discharged without entitlement to any benefits provided by that regulation.

Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  This Board has no authority or jurisdiction over the VA.

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 was obtained from the OTSG.  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 7 May 1960, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 7 May 1963.

The application is dated 30 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