MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 March 2002
         DOCKET NUMBER: AR2001063262

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         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: That his undesirable (under other than honorable conditions) discharge be changed to medical. He states, in effect, that he should have received a medical discharge as a result of the loss of a kidney. He states that he was not given any counseling on how to deal with the loss of his kidney and that he “was forced to take the undesirable.” The applicant does not indicate the date of discovery of the alleged error or injustice. He states that the fact that he does not have the resources to get medical care in civilian hospitals as the reason why it would be in the interest of justice for the Board to consider this application.

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 entered active duty on 26 June 1974 at age 18 with an 8^th grade education. He completed basic combat training, advanced individual training and was awarded military occupational specialty (MOS) 57H10 (Terminal Operations Specialist).

The applicant was reported absent without leave (AWOL) at 0730 hours, 7 January 1975. This period of AWOL was administratively terminated at 0300 hours, 19 January 1975, when his command was notified that he had been hospitalized following an automobile accident. The accident, which occurred at 2130 hours, 18 January 1975, resulted in minor cuts to his chin and right forearm and a ruptured right kidney. Due to the severity of the injury to his kidney it had to be removed at that time. The applicant was hospitalized in the Riverside Hospital, Newport News, Virginia for the period 19 January through 24 January 1975 at which time he was transferred to the military hospital at Ft. Eustis, Virginia. He remained hospitalized until 30 January 1975 when he was released on three weeks of convalescent leave. The record shows that the accident was considered not in the line of duty.

On 26 February 1975, the applicant received non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice for this period of AWOL. The imposed punishment was forfeiture of $80.00, extra duty of 2 hours on weekdays and 4 hours on weekend for 14 days, and restriction to the chapel, post exchange and mess facilities for 14 days.

The applicant’s records show that he was reported AWOL on five more occasions during the period 26 April 1975 through 24 August 1975 for a total of 76 days of lost time.

The record shows that he was apprehended and held by the Newport News Police on possession of marijuana and possession of amphenimines with intent to distribute on 26 April 1975. He was returned to military control on 1 May 1975.

The discharge packet with the applicant’s request for discharge in lieu of trial by court-martial and the court-martial charge sheet are not of record. The record does contain an 11 June 1975 letter to the Commander, Fort Eustis, Virginia indicating separation actions were being considered under Army Regulation 635-206; a 29 July 1975 request for a replacement copy of the 26 February 1975 Article 15 proceedings for inclusion in the court-martial package and a 5 September 1975 letter to the applicant advising him of the reason for his discharge as “conduct triable by court-martial governed by Chapter 10, AR 635-200.”

The applicant’s medical records do not show any complaints of problems that were found to be related to his loss of the kidney after mid-April. There is no discharge medical examination of record.

On 5 September 1975, the applicant’s Report of Separation from Active Duty (DD Form 214) shows that he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. He had 11 months and 24 days of creditable service with 76 days lost time.

Army Regulation 635-40, paragraph 3-2b(1), provides 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 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Paragraph 3-2b(2), as amended, 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 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been


started may not be processed for physical disability processing. Such a case is to be referred to the officer exercising general court-martial jurisdiction. The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation. This authority may not be delegated. A copy of the determination must be entered into the case file when it is forwarded.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 that the applicant ever applied to the Army Discharge Review Board.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 September 1975, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 5 September 1978.

The application is dated 12 September 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

_RVO___ ___JPI __ ___RKS_ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001063262
SUFFIX
RECON
DATE BOARDED	20020307
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.