MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003085518

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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: In effect, that the narrative reason for her discharge be changed from unsatisfactory performance to medically retired.

APPLICANT STATES: In effect, that her knee condition prevented her from passing the run requirement of the Army Physical Fitness Test (APFT). She believes that because of her knee condition the narrative reason for her discharge is unjust. She states that she was informed by the Department of Veterans Affairs (VA) that the narrative reason for her discharge prevented her from being employed at the post office. In support of her application, she submits a copy of her separation document (DD Form 214), a Veterans Application for Compensation or Pension (VA Form 21-52R), and associated medical treatment documents.

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

The applicant entered the Army on 29 August 1996 for a period of 4 years. She was trained and served in military occupational specialty (MOS) 75B
(Personnel Administrative Specialist), and the highest rank she attained while serving on active duty was private first class (PFC).

The applicant’s record also shows that during active duty tenure, she earned the Army Commendation Medal, Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

The applicant’s unit commander notified her that separation action was being initiated against her under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance. The unit commander cited the applicant’s failure to pass two record APFTs on 15 October 1997 and 8 January 1998 as the basis for the separation action.

On 9 March 1998. the applicant consulted legal counsel and was advised of the basis for the contemplated separation action, and she elected not to submit a statement in her own behalf. The appropriate authority approved the applicant’s separation and directed she receive an honorable discharge. On 27 March 1998, the applicant was discharged accordingly. At the time of her discharge, she had completed a total of 1 year, 6 months, and 29 days of creditable active military service.

The medical documents submitted by the applicant indicate that she was diagnosed and treated for a knee condition. However, there is no evidence that shows that this condition was medically disqualifying for further service or that she was ever referred to a medical board based on a determination that she was medically unfit to perform the duties of her grade and MOS. In addition, her separation examination (SF 88), dated 4 February 1998, confirms she was medically cleared for retention/separation by competent medical authority.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides, in pertinent part, that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides, in pertinent part, that when a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her 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 also provides, in pertinent part, that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unsatisfactory performance, and it provided, in pertinent part, that commanders would separate members under this chapter when, in the commander’s judgment, the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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. The applicant’s entire medical record was not available for review by the Board and the independent evidence provided by the applicant is not sufficient to support her contention that she should have received a medical discharge due to her knee injury.

2. The evidence of record confirms that the applicant did not suffer from a medically disqualifying condition that resulted in her being physically unfit to perform the duties of her grade and MOS at the time she was released from active duty. Also, the SF 88 that documents her separation physical examination confirms she was medically cleared for separation by competent medical authority.

3. The Board notes the applicant was not pending a medical or PEB at the time of her separation, and her separation processing was accomplished in accordance with the applicable regulation in effect at the time.

4. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected during her separation processing.

5. In view of the facts of this case, the Board finds that the narrative reason for the applicant’s separation was appropriately assigned based on the authority for her discharge, and the applicant has failed to provide evidence that would challenge its validity. Therefore, the Board concludes that there is no basis for changing the narrative reason for the applicant’s discharge at this time.

6. 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.

7. 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

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085518
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	1998/03/27
DISCHARGE AUTHORITY	AR535-200, CH 13 . . . . .
DISCHARGE REASON	Unsatisfactory Performance
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1. 191	110.0200
2.
3.
4.
5.
6.