MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 February 2002
         DOCKET NUMBER: AR2001061273

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Richard T. Dunbar		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 he be given a medical discharge.

APPLICANT STATES: That he received an "L4 evalsion" (sic) fracture and was unable to continue on active duty. He states that the drill sergeant lied to him in order to get him out of the Army. He adds that he continues to have back problems. In support of his application, he submits a DA Form 2173 (Statement of Medical Examination and Duty Status), a DA Form 3349 (Physical Profile), several DA Forms 689 (Individual Sick Slip), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter that he submitted to his congressman, dated 28 May 2001.

The applicant stated in the letter written to his congressman that he was forced to do physical training when he was wearing a back brace. He was in pain and separated from his family, therefore, when asked what he wanted to do about his service commitment, he asked to be discharged from the military. However, he believes that he was discharged improperly. He is still in pain and he has tried to work with the Department of Veterans Affairs (VA) to reach a solution for almost 3 years and he has received no help. He believes that he has been treated very poorly.

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

During the period 13 October 1995 to 12 February 1996, he was enlisted in the Delayed Entry Program (DEP). On 13 February 1996, he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 11B, Infantryman. On the same date, he was assigned to the 30^th Adjutant General (AG) Reception Battalion, Fort Benning, Georgia.

On 19 February 1996, while assigned to the 30^th AG Reception Battalion, the applicant slipped and fell on the stairs in the barracks area and sustained an
L5 avulsion fracture. On 21 February, he was given a temporary profile that stated no jumping, climbing, stooping, bending, or road marching. He was instructed to walk at his own pace. The profile expired on 31 March 1996.

The sick slips that the applicant provided indicates that he received physical therapy and that he had a number of follow-up appointments during the time that he had the temporary profile for his back.

On 18 April 1996, the applicant was assigned to A Company, 1/50^th Infantry, for basic and advanced individual training. Upon reporting to his unit, he began having problems meeting the requirements to pass the Army Physical Fitness Test. On 9 May 1996, the applicant received his Phase I/II Soldier Counseling during which he was counseled for a lack of motivation; lack of attention to detail and lack of self-discipline. He went on sick call three times and he received a profile for 3 days. The profile was then extended for an additional 2 days. It was during this counseling session that the applicant stated that he wanted to go home because he had lost interest in the Army due to his personal problems, the time that he had been separated from family, and his physical ability.

On 17, 24, 27, 28 and 31 May 1996, the applicant received general counseling statements for failure to meet the standards of the platoon; for failure to make his bunk to standard; for failure to polish his boots; for lack of motivation; for a lack of desire to continue or complete his service obligation; for failing the Army Physical Fitness Test twice; and for substandard performance. He had completed just 5 weeks of training. He was given the opportunity to restart training and he refused. He was then informed that he was being recommended for an entry level separation (ELS) due to his failure to adapt to the military.


On 27 May 1996, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 11, Army Regulation 635 200, by reason of entry-level status -- performance and conduct. The commander indicated that the applicant was being recommended for ELS because his chain of command believed that he did not possess the skills or learning ability needed to become a soldier, he was no longer motivated to continue to train, he had refused the opportunity to restart training and, if he did not restart, he would not develop into a quality soldier and become an asset to the Army. He was advised of his rights and of the impact of the discharge action.

On 27 May 1996, the applicant acknowledged notification, waived further legal counsel, and also stated that he did not desire a separation medical examination. He did not submit a statement in his own behalf. On the same date, he was voluntarily placed in an excess leave status pending discharge.

On an unknown date, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged in an entry level status with an uncharacterized discharge. On 14 June 1996, the applicant was separated under the provisions of Army Regulation 635-200, paragraph 11 (entry level status -- performance and conduct) with an uncharacterized discharge. He had completed 4 months and 2 days of active military service.

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

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel during the initial 180 days of service while still in an entry-level status.


The policy applies to soldiers who have demonstrated that they are not qualified for retention because they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. These soldiers are given an uncharacterized discharge and, when discharged under the provisions of chapter 11, are discharged by reason of entry-level status performance and conduct. Only in certain meritorious cases approved by the Secretary of the Army are they entitled to an honorable discharge.

There is no evidence that the applicant ever applied to the Army Discharge Review Board (ADRB).

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 available evidence shows that the applicant was discharged due to unsatisfactory performance. He lacked the motivation and skill required to become an effective soldier. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. The applicant has failed to provide any evidence of erroneous actions by his chain of command. Further, there is no evidence to indicate that his physical profile was ever violated.

4. The applicant waived a separation medical examination and no medical records were available other than those that were submitted by the applicant. However, all available documents contain no evidence to indicate the applicant had a medical condition or injury that rendered him medically unfit and justified physical disability processing. In fact, the applicant's chain of command recommended that he be recycled in basic training in order to afford him the opportunity to complete training and become an effective soldier. This would not have been done had the applicant been physically unable to complete training, therefore, there is no basis for physical disability separation.

5. Eligibility for veteran's benefits (to include VA medical benefits) does not fall within the purview of this Board.

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

_JHL____ __RJW__ ___RTD _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061273
SUFFIX
RECON
DATE BOARDED	20020226
TYPE OF DISCHARGE	(UNCHAR)
DATE OF DISCHARGE	19960614
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.
3.
4.
5.
6.