MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 11 OCTOBER 2001
         DOCKET NUMBER: AR2001060269


         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 Langston		Chairperson
Mr. Mark D. Manning		Member
Mr. Jose A. Martinez		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)

---

APPLICANT REQUESTS: In effect, disability retirement or separation. He states he had a "mental condition and should have been medically discharged." 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 was inducted and entered active duty on 8 November 1962. In April 1963, following completion of training, he was assigned to Fort Devens, Massachusetts. In August 1963, while performing temporary duty (TDY) at Fort Drum, New York, the applicant departed AWOL (absent without leave). He surrendered to military authorities in California on 12 August 1963. He was attached to Presidio of San Francisco awaiting disposition. He was convicted by a summary court-martial and sentenced to confinement at hard labor for 1 month.

A psychiatric evaluation, conducted on 30 September 1963, found the applicant suffered from a "basic character behavior disorder of lifelong duration…." The evaluating psychiatrist rendered a diagnosis of "passive-dependent type, chronic, moderate, as manifested by helplessness, indecisiveness, a tendency to cling to others…" which existed prior to his entry on active duty. He recommended the applicant be discharged under the provisions of Army Regulation 635-209 for unsuitability. The evaluating physician also concluded that the applicant had "no mental or physical disease or defect which warrants consideration by a physical evaluation board or other disposition through medical channels."

On 7 October 1963 the applicant's unit commander initiated action to administratively separate him for unsuitability. The applicant acknowledged receipt of the proposed separation and waived his attendant rights. The recommendation was approved. On 15 October 1963 the applicant was discharged under honorable conditions.

Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available. A general or honorable discharge was considered appropriate.

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 reasonable perform because of a physical disability incurred or aggravated in service. When a solider 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.

Army Regulation 40-501 states that personality disorders may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels. It also states that transient, situational maladjustment due to acute or special stress do not render an individual unfit because of physical disability, but rather may be the basis for administrative separation if recurrent and causing interference with military 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.

There is no evidence, and the applicant has not provided any, which indicates that he suffered from any medically disqualifying condition which would have warranted separation or retirement by reason of disability.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 15 October 1963, the date the applicant was discharged and authenticated his separation document. The time for the applicant to file a request for correction of any error or injustice expired on
15 October 1966.

The application is dated 10 July 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

__JL____ ___MDM_ __JAM _ CONCUR WITH DETERMINATION

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

---

INDEX

CASE ID	AR2001060269
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011011
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	142.00
ISSUES 1.
2.
3.
4.
5.
6.