RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 12 February 2004
         DOCKET NUMBER: AR2003087266


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Robert J. Osborn		Member
Mr. Lester Echols		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge from the US Army Reserve (USAR) be set aside for promotion to first lieutenant (1LT/0-2), that he be reinstated to an active status effective 20 April 1998, and that he be found qualified for promotion to 1LT and promoted. He also requests that he be awarded retirement points with back pay and allowances for missed Unit Training Assemblies (UTA) and that he be allowed to remain in the USAR in order to complete 20 years of qualifying service.

2. The applicant states that he should be granted the relief requested.

3. The applicant provides two copies of his DA Form 3349 (Physical Profile), two DA Forms 705 (Army Physical Fitness Test [APFT] Scorecards), two DA Forms 4856 (General Counseling Form), and separation orders.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Attorney, as counsel for the applicant, states that the applicant contacted him in the Summer of 2000 concerning his case after his local Staff Judge Advocate, of the 174^th Legal Support Organization, was transferred and unable to complete his case. The applicant had other outstanding information requests from a variety of sources. His case had relied primarily on his own word against alleged Unit "documentation" of his APFT failure and lack of adequate profiles. He needed corroboration to rebut the presumption of regularity normally attached to action of military officials. Until 2002, he was unable to secure necessary cooperation of a unit training clerk and witness to obtain intra-unit documentation.

2. Counsel states that corroborating documents were finally obtained in mid 2002 when the applicant obtained critical medical and other records from his prior USAR unit, 324^th Combat Support Hospital (CSH), providing: APFT records; medical profile history; dates of actual UTAs; Flagging Actions (DA Form 268); counseling statements; and a key memorandum from a former 324^th CSH Unit Trainer, that was placed in unit records in 1997. A USAR soldier, with access to these files, was for several years reluctant to come forward with these documents until transferred to another section within the command. The soldier decided not to release his name in a statement accompanying the files, and wished to remain anonymous. However, his name was provided but was withheld from public release.

3. Counsel in 2002 was delayed in filing the case due to extraordinary personal hardship and took 12 weeks off from his practice. Recovery delayed completion of the applicant's case. Counsel waited for a related officer appointment correction board to support the applicant's case but that was denied.
4. Counsel also states that, finally, the applicant is an officer, with prior enlisted service, and at the time of his wrongful summary discharge in April 1998 had accrued 15 ½ years of total Reserve service with 3 years as an officer. Aside from his alleged double APFT failure as a pretext for summary discharge, he has an excellent duty performance record. His officer appointment is a testament to his superior duty and motivation to contribute to the Army. His medical records after commissioning show a well-documented history of profiles, surgery, and convalescence for primarily knee problems, and difficulties that he managed in approved alternate APFTs and passing several diagnostic APFTs in the interim. His 15 years of USAR service invested towards retirement is now subjected to forfeiture.

5. Counsel goes on to state that the applicant's medical area of concentration (AOC) of 66H remains a critical specialty with the Army particularly after the massive call-ups after September 11, 2001 terrorist attacks. Aside from his alleged double APFT failure, his excellent performance record shows he contributed to the Army Reserve and became a valuable asset.

6. Counsel further states that the applicant was commissioned as a second lieutenant (2LT/0-1) in the medical field. He was assigned as a clinical nurse, Intensive Care Unit (ICU), with the 324 ^th CSH, 81 ^st Army Reserve Command (ARCOM, in Perrine, Florida. His duty performance remained excellent. He had a physical profile for his knees since 1991 and was allowed to take an alternate APFT which he passed on 10 May 1995.

7. On 15 October 1995, while still on profile, counsel states that the applicant failed his alternate APFT. A flag was initiated on 29 October 1995 with an effective date of 15 October 1995. After his failure, medical officials and his commander reevaluated his profile. However, an updated profile prohibited any APFT for 18 months pending recovery from a surgical procedure called Menisectomy/Chondomalicia. He was encouraged to develop a personal physical fitness program and take diagnostic APFTs accordingly. The applicant's promotion qualification statement for consideration to first lieutenant (1LT) was forwarded for processing by the 324 ^th Unit Administrator (UA) in July 1996 pending his recovery period.




8. Counsel states that in January 1997, after recovery from surgery, the applicant's P3 profile was reevaluated by his command and Army physicians to determine whether he would face medical separation. However, he was only issued two permanent profiles of P-2 with diagnoses of "Left Knee Post Menisectomy/Chondomalicia" and "Epididymitis" (inflammation of the testicles usually from urinary tract infections). Also in January 1997, the applicant's APFT status was returned to the alternate test (walking). At that time, his flag was not removed and he remained ineligible for promotion to 1LT. On 10 May 1997, the applicant passed his APFT. However, no official in the unit would sign and accept his APFT under the mistaken belief that the applicant was under a "no-APFT profile." On 3 August 1997, the applicant failed his alternate APFT. He was counseled, flagged, and given a mandatory retest in 60 days at the October drill assembly scheduled on 3 October 1997.

9. The applicant was unable to undertake a re-test during the October drill when medical officials issued a temporary T-2 profile for "No APFT" for right knee internal derangement pending reevaluation. Counsel states that the applicant had injured his right knee during a September drill diagnostic APFT and aggravated it during a workout. The injury was related to complications of his prior surgery that had left a weakened left knee. The retest was tentatively scheduled for 3 October 1997 and the UTA drill was actually scheduled for 4 to 5 October 1997. However, he did not take the APFT at the drill. The UA decided that no APFT retest was performed on that date of 3 October 1997, so he submitted the applicant for discharge based on his two APFT failures. The UA decided that under the 1996 October Reserve Officer Personnel Management Act (ROPMA) retention changes, that 2LTs with less than 5 years commissioned service and not qualified for promotion may be summarily discharged without a hearing. On 4 April 1998, medical officials issued that applicant a T-2 profile for "No APFT for 30 days" with an expiration date of 4 May 1998 due to his right knee internal derangement. The commander approved this profile.

10. The 324 ^th CSH UA informed the Army Reserve Personnel Command (AR-PERSCOM) officials to continue processing the pending summary discharge for disqualification under the pretext of substandard duty performance as a two time APFT failure. He was discharged on 20 April 1998 under Army Regulation 135-175, not qualified for promotion.

11. Counsel further states that the applicant's discharge was wrongful because only the one August 1997 APFT failure existed, with no second failure or non-excused refusal without medical profile. Regulation allows for disqualification for unsatisfactory duty performance without medical profile that repeatedly fails to meet the standards of APFT. No other purported reason was offered to disqualify the applicant for promotion to 1LT nor can the 324 ^th UA apply a 1995 APFT failure prospectively in 1997 or 1998 to satisfy Army Regulation 135-175.

12. Counsel concludes that otherwise the applicant has an excellent duty performance spanning 15 years, with prior military service as enlisted, with records of documented physical profiles, surgery, convalescence, and repeated injuries. However, the 324 ^th sought to abruptly end the applicant's 15-year Reserve service and investment toward a 20-year military retirement under the pretext of two APFT failures. His discharge should be set aside restoration to an active status in the USAR to continue his medical career, or in the alternative, set aside the discharge with reinstatement in the USAR to complete 20 years of qualifying service for retirement purposes.

13. Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE :

1. The applicant is requesting correction of injustice which occurred on 20 April 1998, the date of discharge. The application submitted in this case is dated 25 August 2002.

2. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant was administered a medical examination on 6 September 1994 that shows he was qualified for appointment in the Army Reserve with a 311111 profile with a medical waiver.

4. The applicant's military records show that he was appointed as a Reserve commissioned officer in the rank of 2LT/0-1, on 14 January 1995, in the Army Nurse Corps (ANC), with prior military service, in AOC 66H.

5. A copy of the applicant's unit APFT status roster shows that the applicant had a 311111 permanent profile, effective January 1991, for chronic left knee grinding. His APFT consisted of push-ups and timed walk.

6. He completed the officer basic course (OBC) on 16 June 1995 with no APFT administered.





7. On 15 October 1995, the applicant was given an alternate APFT and failed. A flag was initiated on 29 October 1995 with an effective date of 15 October 1995.

8. On 10 May 1997, while on profile, the applicant was given an alternate diagnostic APFT. A review of his test shows that he passed; however, it was not signed.

9. On 3 August 1997, the applicant was given another APFT and failed. A flag was initiated again on that same day. He was scheduled for a mandatory retest in 60 days at the October drill assembly scheduled on 3 October 1997. However, he was unable to take the retest because he was issued a temporary T-2 profile for "No APFT" for his right knee internal derangement pending reevaluation.

10. On 28 October 1997, a memorandum was prepared by the UA for record reference. The UA stated that he was present for every APFT given since 1995 and that the last record APFT for the applicant was dated 3 August 1997, which he failed.

11. A request for separation was submitted on 25 February 1998 by the applicant's unit to the 81 ^st Regional Support Command (RSC) for separation under the provisions of Army Regulation Army Regulation 135-155, due to his non-qualification for promotion.

12. The applicant was honorably discharged on 20 April 1998, in the rank of 2LT/0-1, due to his failure to be considered for promotion to 1LT.

13. A copy of the applicant’s Chronological Statement of Retirement Points shows that he had completed 14 years of qualifying service for retirement purposes.

14. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve Component officers. The regulation states that a Reserve Component officer in the grade of W-1 or 2LT will be considered for promotion without review by a selection board. The officer’s records will be screened to determined eligibility for promotion to the next higher grade. This will be determined far enough in advance to permit promotion on the date promotion service is completed. The regulation also provides that the effective date of promotion will be the date the mandatory service and promotion eligibility requirements are completed. The regulation specifies that in order to be qualified for promotion to first lieutenant an individual must have completed an officer basic course and meet all promotion eligibility requirements. A qualified 2LT will not be promoted before the date of completion of 3 years of promotion service except as an officer serving in a unit vacancy.

15. Paragraph 4-27 of the same regulation states that an initial nonselection for promotion to the next higher grade will constitute a first passover for promotion. An officer not qualified for promotion to the grade of 1LT will not again be considered for promotion unless retained in an active status.

16. Paragraph 4-28 of the same regulation states that USAR 2LTs are considered for promotion without board action. If found not qualified for promotion to the grade of 1LT, a final determination concerning retention will be made by Area commanders and AR-PERSCOM. The names of officers found not qualified and the reasons for disqualification will be reported to the commander concerned. A determination of whether the officer should be discharged or retained in an active status will be made. Paragraph 4-29 states that an officer's failure to be selected for promotion from an active Reserve status must be removed within the prescribed time limits.

17. Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Paragraph 4-6 pertains to failure to qualify for promotion to first lieutenant. An officer in the grade of second lieutenant who has completed the required statutory military service obligation will be discharged on being considered but not recommended for promotion by the appropriate commander on or before the date on which the officer completes 3 years of promotion service.
18. Army Regulation 350-15 provides training guidance, objectives, and philosophy for the Army Physical Fitness Program. Paragraph 12 pertains to incentives and corrective action. Subparagraph 12d states that personnel without medical profile, who repeatedly failed to meet the standards and display no significant, continuing progress toward meeting the standards, will be considered for separation from the service according to required regulations. A repetitive failure occurs when a record test is taken and failed, the soldier is provided adequate time and assistance to improve their performance, and failure occurs again.

DISCUSSION AND CONCLUSIONS :

1. The evidence of record shows that the applicant had a P3 profile prior to his appointment date of 14 January 1995 to 2LT/0-1. His established eligibility date for 1LT/0-2 was 13 January 1997 as long as he met the requirements according to regulation.




2. The evidence of record shows that the applicant failed a record APFT on 15 October 1995 and again on 3 August 1997. He had a history of profiles, was counseled, flagged, and was scheduled for an alternate APFT. He was unable to take the APFT during drill due to issuance of another temporary profile. The evidence also shows that he may have passed one diagnostic APFT; however, it was not signed or validated. There is no evidence of record that the applicant ever passed a record APFT from the date of his appointment to the date of his discharge.

3. The applicant was honorably discharged effective 20 April 1998 in accordance with regulation for failure to be considered for promotion to 1LT. Therefore, he is not entitled to reinstatement in the USAR to an active status due to his discharge.

4. The applicant's statement of retirement points shows that he had completed 14 years of qualifying service for retired pay and was not entitled to remain in the USAR to complete 20 years of qualifying service due to failure to be considered for promotion. The applicant is not entitled to be awarded any additional retirement points or back pay and allowances for missed UTAs.

5. Records show the applicant should have discovered the error or injustice now under consideration on 20 April 1998. However, counsel has provided a compelling explanation to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__jl___ ___ro__ __le______ DENY APPLICATION


The Board determined that the evidence presented was sufficient to excuse failure to timely file. However, the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  ____Joann Langston__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087266
SUFFIX
RECON
DATE BOARDED	20040212
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19980420
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	1023
2.
3.
4.
5.
6.