| Mr. Loren G. Harrell | Director | |
| Mr. Kenneth Aucock | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Ms. Shirley L. Powell | Member | |
| Ms. Kathleen A. Newman | Member |
APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation.
The applicant states that she was raped during her military service, was not allowed an attorney, or even counseling, but sent back to her unit, which continued to abuse her, and due to that retaliation she sustained several injuries to her legs, feet, and pelvis, requiring hospitalization. The Army tried to deny any of this and hide their maltreatment of her. She was sent on two missions to Vietnam, once on official orders and then transferred to Cambodia.
The CID investigation obtained witness statements and paid or promised individuals or threatened individuals, resulting her being charged with lying to the CID. During her hospitalization she was raped by the doctor who examined her while she was strapped down, and his civilian assistant helped him. She was not his only victim.
The sexual harassment worsened at Darmstadt and because of the trauma, she was unable to perform her duties. Consequently, she was given a general discharge.
The asthma mentioned was a chemical pneumonia sustained by being sprayed and drenched in napalm and agent orange in Vietnam. She also developed problems with her right leg. She was in excellent physical condition prior to her entry into the Army. She was also electrocuted with 250 volts of electricity while undergoing military intelligence training. She is entitled to compensation. She also wants the CID investigators’ names, units, addresses, real CID reports, polygraph examinations, and all evidence concerning her service connected disabilities.
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 enlisted in the Army on 18 May 1976, completed training, and in January 1977 was assigned to a battery of the 32nd Army Air Defense Command in Germany as a clerk typist.
Included herein by reference (ATTACHED) is a 1 Novembr1995 decision by this Board denying the applicant’s request to upgrade her discharge and to remove all derogatory information from her records.
A 12 April 1977 report of medical examination indicates that the applicant was medically qualified for discharge with a physical profile of T3 1 T3 1 1 1. That report indicates that she had a temporary profile for asthma and a temporary profile for Achilles tendonitis until 22 June 1977. The report also indicates she had a history of asthma and expiratory wheezing. In the report of medical history that she furnished for the examination, the applicant stated that besides having asthma, she felt fine.
Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, she must be unable to perform the duties of his office, grade, rank or rating.
Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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.
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.
Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, her continued performance of duty until she is scheduled for separation creates a presumption that the member is fit for duty.
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 10 May 1977, the date of her discharge. The time for the applicant to file a request for correction of any error or injustice expired on 10 May 1980.
The application is dated 17 August 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
__rvo___ ___slp__ ___kan__ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
| CASE ID | AC |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | YYYYMMDD |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | (NC, GRANT , DENY, GRANT PLUS) |
| REVIEW AUTHORITY | |
| ISSUES 1. | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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