MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 25 OCTOBER 2001
         DOCKET NUMBER: AR2001059000


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Ronald E. Blakely		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, physical disability retirement or discharge.

He states that he is suffering from post traumatic stress disorder (PTSD) and at the time of his discharge he did not receive a proper medical examination. He has been experiencing constant nightmares as a result of his tour in Vietnam.

The applicant states that he was wounded in the left side of his face in 1968. A round entered the left side of his face breaking his jaw and entering his neck cutting the carotid artery, continuing down his neck before exiting his back near his left shoulder blade. He was evacuated to a surgical unit, spent 18 months in recovery and rehabilitation before he was discharged. He received a 50 percent disability rating even though he could not perform any duties. He never received any counseling or help, and it was many years before he started to have nightmares related to his trauma. He stated that his records should be changed to reflect that he is 100 percent disabled.

The applicant submits an affidavit in support of his request in which he states that he was diagnosed by a physiologist at the VA in Philadelphia with PTSD. He states that at times he notices how easily he is prone to uncontrollable bursts of anger and violence.

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 for three years on 13 November 1967. He completed training as an infantryman and in June 1968 was assigned to an airborne infantry battalion in Vietnam. He was wounded on 15 August 1968 as a result of hostile action, receiving a fragment wound to his left arm and left ankle. In October 1968 he was promoted to pay grade E-4. On 13 December 1968 the applicant was awarded the Air Medal for meritorious achievement on 4 August 1968. On 16 December 1968 the applicant was awarded the Bronze Star Medal with “V” device for his heroism on 1 October 1968. On 26 January 1969 he was again wounded, receiving gunshot wounds to his left cheek and neck with a laceration to his back. The applicant was hospitalized and subsequently assigned as a patient to the 7^th Field Hospital. On 26 February 1969 he was evacuated to the United States and assigned to Valley Forge General Hospital in Phoenixville, Pennsylvania. In June 1969 he was assigned to Fort Dix, New Jersey as an instructor’s aide and in September of that year assigned to the 3d Squadron, 6^th Armored Cavalry Regiment at Fort Meade, Maryland, as an automatic rifleman.
An FBI report shows that the applicant was arrested on 2 July 1969 in Philadelphia on a charge of burglary and larceny. That same report shows that he was arrested on 25 November 1969 in Westmont, New Jersey on a charge of breaking and entering, larceny, and possession of stolen property.

On 19 November 1969 the applicant received nonjudicial punishment under Article 15, UCMJ, for breaking restriction. On 12 January 1970 he received nonjudicial punishment for two counts of AWOL. On 18 February 1970 he received nonjudicial punishment for failure to go to his place of duty.

On 10 January 1970 the applicant requested a compassionate reassignment to the Defense Personnel Support Center in Philadelphia, because of his wife’s illness and in order to care for his child. His request was disapproved on 24 April 1970.

On 10 January 1970 the applicant also requested a hardship discharge, citing his wife’s illness and the care of his child as the reason for his request.

The applicant was AWOL on 6 April 1970, returning to duty on 7 April 1970. He was AWOL on 9 June 1970, returning to duty on 10 June 1970. He was AWOL for 15 days from 6 July to 20 July 1970 and again from 22 July 1970 to 24 July 1970. He was again AWOL from 31 August 1970 to 23 September 1970. On 24 September 1970 he was apprehended by civil authorities in Philadelphia and returned to military control on that same day.

On 8 October 1970 the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.

On 23 October 1970 the separation authority approved his request and directed that the applicant be furnished an Undesirable Discharge Certificate. However, upon appeal from the applicant’s battalion commander, and in view of the applicant’s two wounds that he received in Vietnam, the separation authority reconsidered his decision and directed that the applicant be issued a General Discharge Certificate. The applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, on 2 November 1970. He had 2 years, 9 months, and 27 days of service and 54 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

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.

Army Regulation 635-40 provides 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.

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. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial
to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

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 was medically unfit for duty at the time of his discharge. Nonetheless, because of the nature of his offenses, he could not be referred for disability processing. There is no basis to correct his record to show physical disability retirement or discharge.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 2 November 1970, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 2 November 1973.

The application is dated in 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

__RJW__ __KAN __ __REB __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001059000
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011025
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.
4.
5.
6.