MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001058569

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman, Jr.		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 the narrative reason for his discharge be changed.

APPLICANT STATES: That he was found to meet medical standards for enlistment even though he entered the service with a congenital condition of the feet and ankles which affected his ability to perform physical training to military standards. He should have been discharged when his problems with physical training were initially recognized. He was not afforded the opportunity for mental health counseling which he believes would have encouraged him to rise above the ridicule he suffered and maintain his motivation. He was not afforded the opportunity for a rehabilitative transfer when he requested it. He was not assisted in finding his E-3 promotion paperwork which led to further damage to his morale and self-esteem. The Army Discharge Review Board (ADRB) upgraded his discharge to fully honorable. Supporting evidence is as listed on the attachment to his DD Form 293.

EVIDENCE OF RECORD: The applicant's military records show:

He was born on 11 January 1971. He enlisted in the Regular Army on 23 August 1989. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman). He was assigned to the 5^th Battalion, 20^th Infantry, Korea on or about 16 January 1990.

On 31 January 1990, the applicant received his initial counseling. It was noted that he did a fine job in the field on a field training exercise. On 1 March 1990, he received his final counseling from that particular supervisor. It was noted that he did a good job during the platoon Army Training and Evaluation Program (ARTEP) and he showed he could do the job as an M249 (SAW) Gunner. He was improving on his physical training run. On 30 March 1990, he received a performance counseling in which it was noted that he assisted in the successful completion of all the squad missions and responsibilities such as reconnaissance patrols and movement to contact. On 1 May 1990, he was counseled that he was not a problem soldier but he would do exactly what he was instructed to do and nothing extra. He was also counseled to put some time of his own into getting physically in shape because he had not made a run with the unit for the past month. On 7 May 1990, he was counseled (commended) for passing the Army Physical Fitness Test (APFT). On 10 May 1990, he was counseled for failing the battalion driver’s test on three separate occasions and for displaying an “attitude” the last couple of weeks. On 13 May, 30 August, 13 September, and 29 September 1990, he was counseled for failing to complete the company run or the APFT. In September 1990, he was also counseled for being disrespectful to a noncommissioned officer and for communicating a threat (he commented that he never made this threat, that it was “a presumed assumption and joke generated by members of my squad…”). On 26 October 1990, he was counseled for failing to complete the company run. His end of month counseling on 30 October 1990 indicated that he did only what he was told to do and the tasks he was given were not accomplished to standards.

On 10 December 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for answering a noncommissioned officer in a contemptuous manner. His punishment was to be reduced to pay grade E-2, to forfeit $191.00 pay, to be restricted for 7 days, and to perform 7 days extra duty.

The applicant’s end of month counseling on 30 November 1990 indicated his performance and attitude improved dramatically and it was noticed within his chain of command. His end of month counseling on 30 December 1990 indicated his attitude had risen but his running ability needed to improve. On 5 and 10 January 1991, he was counseled for failing the APFT.

The applicant’s APFT Scorecard, DA Form 705, for the dates 3 November 1990 and 3 January 1991 show his height as 65 inches and his weight as 168 pounds and 167 pounds, respectively. (The maximum allowable weight for a 19-year old male 65 inches tall was 155 pounds.) The DA Form 705 for the date 10 January 1991 showed his height as 64 inches and his weight as 159 pounds. (The maximum allowable weight for a 19-year old male 64 inches tall was 150 pounds.)

On 30 January 1991, the applicant underwent a mental status evaluation. His behavior was noted as normal, his level of alertness as fully alert, his level of orientation as fully oriented, his mood or affect as unremarkable, his thinking process as clear, his thought content as normal, and his memory as good. He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

On 25 February 1991, the applicant completed a separation physical and was found qualified for separation. His height was listed as 64 inches and his weight as 158 pounds. On his Report of Medical History, SF 93, the applicant noted that he felt fine and checked “no” to the block “Have you ever had or have you now… foot trouble… depression or excessive worry… nervous trouble of any sort.”

On or about 28 February 1991, the applicant’s commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance. His recommendation cited the applicant’s failure to pass an APFT.

On 28 February 1991, the applicant was advised by consulting counsel of the basis for the contemplated separation action. He requested counsel. He elected not to submit a statement in his own behalf.

On or about 28 February 1991, the applicant’s commander formally recommended the applicant be separated for unsatisfactory performance. He stated that all rehabilitative efforts (extra physical training on weekends and remedial physical training on weekdays) had been ineffective.

The appropriate authority waived the rehabilitative transfer requirements, approved the recommendation, and directed that the applicant be given a general discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. Chapter 1 states that commanders will ensure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a soldier for unsatisfactory performance. The separation authority may waive the requirement for a rehabilitative transfer when it would not be in the best interests of the Army as it would not produce a quality soldier.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation. “Turning in” of the feet is not listed as a reason for rejection for enlistment.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, or rank. It states that a lack of special skills, (such as the ability to complete the APFT) does not, in itself, establish eligibility for disability separation or retirement.

The applicant’s civilian medical records show that he was apparently born with his feet “turned in” but the pediatrician reassured his mother that it was normal or would automatically correct itself. He was referred to Orthopedic in April 1977 at age 6 because of delayed bone age and inward turning of feet. An undated document noted that his mother felt that the applicant’s right foot was still turned in and not improved although he had no problems in running or walking. A more aggressive approach was taken. On 16 November 1978, when he was almost 8 years old, the applicant’s feet were manipulated and both legs were encased in short leg casts. The casts were removed about 1 month later. On 2 March 1979, his feet showed considerable improvement compared to their pre-manipulative status. In January 1982, the applicant was examined because his mother felt he was growing too slowly. The doctor explained growth curve and the probable lack of need for further orthopedic correction. At that time the applicant denied difficulty with running or walking or pain in feet. No further entries regarding his feet are available.

The applicant’s service medical records show that he was treated for blisters and an ingrown toenail in October and November 1989. In January 1990, he was treated for a complaint of numbness in the big toes of both feet. No redness, swelling, or deformities were present and there was good capillary refill and circulation.

On 25 May 2001, the ADRB voted to upgrade the applicant’s discharge to fully honorable after finding that his faithful and honorable service outweighed the discrediting entries in his records. The ADRB determined that the reason for his discharge was proper and equitable and voted not to change it.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3. Not all congenital conditions are causes for rejection for service. The Army did not know the applicant had a congenital condition of his feet and ankles when he enlisted (and the Board does not find it credible that the applicant forgot that at almost 8 years of age he had casts on both legs for almost a month). In any case, turning in of the feet is not a cause for rejection. The Board notes that in January 1982 the applicant denied having difficulty with running or walking. The available counseling forms indicate that he was able to perform the presumably physically demanding duties of an infantryman.

4. The evidence of record does not show any reason why the applicant’s chain of command should have referred him for mental health counseling. His mental status evaluation found him normal in all respects and he denied any depression or excessive worry or nervous trouble of any sort (or any foot trouble) at the time of his separation. The Board cannot determine when he was advanced to E-3 or if there was an undue delay in his advancement but again there is no evidence of record to show that any problem in this regard damaged his morale or self-esteem.

5. The separation authority appropriately waived the requirement for a rehabilitative transfer. The Board concludes that it would have been unlikely for a change of unit to have improved the applicant’s running ability.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__cla___ __clg___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058569
SUFFIX
RECON
DATE BOARDED	20010911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.02
2.
3.
4.
5.
6.