MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 01 AUGUST 2002
         DOCKET NUMBER: AR2002071686


         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. Samuel A. Crumpler		Chairperson
Mr. Melvin H. Meyer		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 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, physical disability retirement or separation.

The applicant states that he was physically unfit for duty, but had to perform his duty and simply endure the pain. His discharge was based on medical issues. He was incarcerated. He received radiation treatments and had so many medical problems he could not perform. He needs to get the medical discharge he was promised. He was in pain and acted rebelliously as a result. He submits a copy of a VA administrative decision, and copies of reports of medical examinations conducted prior to his entry on active duty and at the time of his separation in 1972.

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 two years on 2 November 1970 and was assigned to Fort Dix, New Jersey for training.

On 28 November 1970, the applicant received nonjudicial punishment under Article 15, UCMJ, for wrongfully sleeping while on fire guard.

On 1 December 1970, the applicant was arraigned, tried, and convicted by a summary court-martial for violating a lawful regulation by introducing, possessing, and selling an alcoholic beverage into the enlisted billets of his unit; for assaulting a fellow soldier; and for wrongfully threatening to injure a fellow soldier. He was sentenced to be confined at hard labor for thirty days and to forfeit $80.00 a month for one month. The applicant’s enlisted qualification record shows that he was confined from 1 December 1970 to 24 December 1970.

On 27 May 1971, the applicant was arraigned, tried, and convicted by a special court-martial for committing an assault upon a fellow soldier with intent to commit sodomy, by slapping him in the face, straddling him, and by exposing himself and demanding that the fellow soldier commit an act of oral sodomy upon him; and by committing an assault on another fellow soldier by unlawfully striking him about the face and body with his fists and with a broom handle. He was sentenced to forfeit $89.00 pay per month for six months, to be confined at hard labor for six months, and to be discharged from the Army with a bad conduct discharge. The applicant’s enlisted qualification record shows that he was in pre-trial confinement from 12 March 1971 to 26 May 1971, and that he was confined thereafter from 27 May 1971 to 26 October 1971.
An 8 October 1971 report of medical examination indicates that the applicant was medically qualified for separation. In the report of medical history that the applicant furnished for the examination, he indicated that he had or had had various ailments, to include back pain while in training with radiation in his leg. He did not provide a statement of his present health.

On 21 June 1972 the Army Court of Military Review affirmed the findings of guilty and the sentence as approved by the court. Special Court-Martial Order Number 248, Headquarters, United States Army Training Center Infantry and Fort Dix, dated 12 October 1972, indicated that the sentence had been affirmed and directed that it be duly executed. That order showed that the portion of the sentence pertaining to confinement had been served.

The applicant was discharged on 26 October 1972 under conditions other than honorable. He had 1 year, 3 months, and 16 days of service, and 223 days of lost time.

On 9 March 1987, the Army Discharge Review Board, in an unanimous decision, denied the applicant’s request to upgrade his discharge.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, then in effect, 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 paragraph goes on to say 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, paragraph 1-2, 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.

There is no evidence, nor has the applicant provided any, to indicate that the applicant was medically unfit for retention during his military service. Nevertheless, the applicant could not have been referred for disability processing because of the nature of his offenses, for which he received a bad conduct discharge; consequently, there is no basis to grant the applicant’s request for physical disability retirement or separation.

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 26 October 1972, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 26 October 1975.

The application is dated 27 February 2002 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

__SAC__ __MHM _ __RKS __ CONCUR WITH DETERMINATION

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

---

INDEX

CASE ID	AR2002071686
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020801
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.	108.00
2.
3.
4.
5.
6.