MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	

	BOARD DATE:         10 November 1998     
	DOCKET NUMBER:   AC97-09510


	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  




	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	             if any)

APPLICANT REQUESTS:  That his undesirable discharge be changed, in effect, to a medical separation or retirement.  He states he was discharged as a result of testimony by a psychiatrist and then spent nearly three years in a mental hospital following his discharge and as such believe “he should be given a medical discharge.  (Note:  In the interest of time the applicant’s DD Form 293 was accepted in lieu of a DD Form 149.)

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 were partially destroyed during the 1973 fire at the National Personnel Records Center however remaining records show:

He entered active duty on 8 July 1953 and by January 1955 had accumulated more than 200 days of lost time due to AWOL and confinement.  As a result of his habitual AWOL the applicant’s commander initiated action to administratively separate the applicant for unfitness under the provisions of Army Regulation 615-368.

A November 1954 mental health evaluation noted the applicant suffered from immaturity reaction and passive-aggressive reaction but those conditions did not require any assignment limitation.  The evaluating professional indicated, however, that rehabilitation would be a lost cause and recommended he be administratively separated.  His separation physical examination cleared him for administrative separation.

On 6 January 1955 the applicant appeared before an administrative separation board which concluded he displayed habits which rendered retention in service undesirable.  The board recommended separation with an undesirable discharge.  The board’s findings and recommendation were approved an on 
24 January 1955 the applicant was released from active duty under other than honorable conditions.

Shortly after his separation the applicant petitioned the Army Discharge Review Board to upgrade his discharge to honorable.  He noted in that petition that he was having difficulty securing employment because of the adverse separation.  The Army Discharge Review Board denied his request.

In 1962 the applicant petitioned the Army Discharge Review Board to grant him a medical discharge stating that he had been under the care of a psychiatrist at the time of his separation and that he had been recommended for a medical discharge but it was denied.  The Army Discharge Review Board again denied his request.

Army Regulation 615-368, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included, in addition to misconduct and repeated petty offenses, habits and traits of character manifested by antisocial or amoral trends, chronic alcoholism, criminalism, pathological lying, or habitual shirking.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was unsuccessful, impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers who service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence established that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

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 Board’s medical advisor.  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 24 January 1955, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 24 January 1958.

The application is dated 27 May 1997 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

__CMF___  __INW__  __MKP__  CONCUR WITH DETERMINATION




		Loren G. Harrell
		Director