| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Ms. Irene N. Wheelwright | Chairperson | |
| Mr. Fred N. Eichorn | Member | |
| Ms. Gail J. Wire | Member |
APPLICANT REQUESTS: In effect, physical disability retirement or discharge.
The applicant states that he has a service connected disability, post traumatic stress disorder (PTSD), as a result of his service in Vietnam, and his discharge should have been upgraded years ago. He states that it is discriminatory and inhumane [to continue to show his discharge as bad conduct]. He states that a district court in Colorado entered a judgment in favor of a soldier challenging an administrative decision refusing to upgrade his discharge, and cites the reasons thereof. He states that this Board may in the interest of justice review and correct any military record no matter how long ago the alleged error or injustice occurred. The applicant cites records of other, presumably court cases and law, which purportedly support his request.
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: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his request to upgrade his discharge AC77-00247 on 6 July 1977, and AC77-00247A on 9 March 1983.
The applicant was inducted into the Army on 16 April 1969, completed training, and in September 1969 was assigned to an artillery battery in Vietnam. As a result of a general court-martial which convened on 19 October 1970, the applicant was sentenced to a bad conduct discharge and confinement at hard labor for one year. He was confined at Fort Leavenworth, Kansas. The applicant served his sentence, returned to duty, and was placed on excess leave. His sentence was affirmed and he was discharged on 14 July 1972.
A 6 April 1971 psychiatric evaluation at the disciplinary barracks at Fort Leavenworth, where he was confined, indicated that the applicant’s condition was diagnosed as inadequate personality, chronic and moderate.
On 23 May 1986 the applicant was informed that his second request for reconsideration had been reviewed, but not considered by the Board because he had not submitted any new material evidence to establish error or injustice.
Army Regulation 635-40 states in pertinent part 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.
That regulation also states 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.
Furthermore, Army Regulation 635-40 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.
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.
There is no evidence, nor has the applicant provided any, to indicate that he incurred any disability during his military service. Nonetheless, he could not have been referred for physical disability processing because of the nature of the court-martial charges preferred against him and the resultant sentence to a bad conduct discharge. Consequently, there is no basis to grant his request for physical disability retirement or discharge.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 July 1972, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice pertaining to physical disability expired on 14 July 1975.
The application is postmarked on 28 April 2001 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. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it
had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__INW __ __FNE __ __GJW__ CONCUR WITH DETERMINATION
| CASE ID | AR2001057016 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20010809 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 142.00 |
| 2. | 108.00 |
| 3. | 177 |
| 4. | |
| 5. | |
| 6. |
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