MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 18 SEPTEMBER 2001
         DOCKET NUMBER: AR2001058903


         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.

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		Member

         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)

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APPLICANT REQUESTS: In effect, that his general discharge be upgraded to honorable and that he be granted a disability retirement or separation. He states, in effect, that he was discharged because of a knee problem. He notes that he underwent a knee operation “in Korea [in] 1982.” Upon reassignment to Fort Campbell, Kentucky he informed his commander that he had a physical profile. He states that in spite of the profile he was sent to Air Assault School, Amphibious Warfare Training, and Jungle Warfare Training. He states that as a result of that training he had to undergo a second knee operation. The applicant states that his physician told him if he did not abide by his physical profile he “would court-martial [him].” However, the applicant contends, in effect, that his chain of command insisted that he continue to perform his duties, would not transfer him to duties which he could “handle” and ultimately separated him with a general discharge. He notes that he is now “service-connected” for his left knee condition. Other than his self-authored statement, he submits no evidence in support of 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: The applicant's military records show:

He entered active duty on 18 August 1981 and successfully completed training as an infantryman. In November 1981 he was assigned to Korea and by June 1982 he had been promoted to pay grade E-3. He returned to the United States in May 1983 and was assigned to Fort Campbell, Kentucky.

His records indicate that on 26 July 1983 he was issued a temporary physical profile to permit “healing” following surgery on his left knee. The profile precluded jumping and deep knee bends, but permitted the applicant to run “2 miles at [his] own pace” and to attend physical therapy. In September 1983 his temporary profile was extended for 30 additional days. It expired on 27 October 1983.

In August 1993 the applicant was convicted by a civilian court of DUI (driving under the influence). As a result of the conviction he was issued a General Officer Letter of Reprimand and his driving privileges were revoked. In November 1993 he was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for possession of marijuana and driving with a suspended license.

Between February and April 1984 the applicant completed Amphibious Warfare, Air Assault, and Jungle Warfare Training.
In June 1984 the applicant received a permanent physical profile as a result of a ligament tear in his left knee. The profile permitted the applicant to swim as an alternative to the Army’s standard physical fitness test and to wear a brace for field duty.

In August and September 1984 the applicant was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty.

In January 1985 the applicant’s unit commander initiated action to administratively discharge the applicant from active duty under the provisions of Army Regulation 635-200, chapter 14 for patterns of misconduct. The commander cited the applicant’s history of failure to repair, drug and alcohol related offenses, failure to pay just debts and “an incident of selling a sawed off shotgun that had been stolen.” The commander also noted that the applicant was a “habitual malingerer.”

The applicant acknowledged receipt of the proposed separation, consulted with counsel and ultimately waived his right to appear before a board of officers and to submit statements in his own behalf.

The recommendation was approved and on 17 January 1985 the applicant was discharged under honorable conditions.

Army Regulation 635-200, chapter 14 provides for the separation of soldiers who display a pattern of misconduct. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge.

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 whose 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 establishes 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. The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The fact that the VA granted a service connected disability rating does not necessarily demonstrate any error or injustice by the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

Although the applicant may have had a permanent physical profile, his continued performance of duty until his separation from active duty in February 1986 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation. Additionally, there is no evidence, nor does the applicant provide any, that his incidents of misconduct were related to his knee condition.

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 17 January 1985, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 17 January 1988.




The application is dated 11 June 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

__JHL___ __MHM __KAH __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001058903
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010918
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.
3.
4.
5.
6.