RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 October 2005
      DOCKET NUMBER:  AR20050000370


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his honorable discharge (HD) be
changed to a medical discharge, or that his record be corrected to show he
completed his enlistment and was separated at the expiration of his term of
service (ETS).

2.  The applicant states, in effect, he was separated early because he
could not pass the cardio portion of the Army Physical Fitness Test (APFT),
which was due to a torn ligament in his knee.  He also states that upon
arriving to his new duty station in Germany, he was told the APFT he took
was an unofficial diagnostic test that would not be recorded in his
official record.  He claims he did not take the diagnostic APFT seriously,
and was not worried when he failed the "run" portion of this unofficial
test.  He states that as time went on, he began to have problems with his
feet and was referred to the Landstuhl Medical Center, where he was told he
had flat feet and subsequently received a permanent profile.  The applicant
further states his knee started to go out on him and doctors informed him
he must have twisted it, or something.  He claims to have continuously had
problems with his feet and knees, and although the medical staff said he
was not faking, his company commander did not believe him and processed him
for early separation from the Army.

3.  The applicant also claims that he was not a bad Soldier, and was never
punished under the Uniform Code of Military Justice (UCMJ) for any reason.
He further states his discharge from the Army for unsatisfactory
performance was not deserved, and now requests he be given a medical
discharge for his flat feet and the torn ligament in his knee, or that his
records be corrected to show he completed his enlistment and was separated
by reason of ETS.

4.  The applicant provides the following documents in support of his
request:  Department of Veteran Affairs (VA) Rating Decision, dated 24
August 2004; APFT Scorecard; and Self-Authored Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 26 July 1996.  The application submitted in this case is dated
16 December 2004.

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 limitations 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’s record shows he enlisted in the Regular Army and
entered active duty on 29 November 1994, for a period of three years.  He
was trained in, awarded, and served in military occupational specialty
(MOS) "92Y" (Unit Supply Specialist), and was assigned to Germany on 10
July 1995.

4.  On 19 July 1995, the applicant was administered a diagnostic APFT.  The
APFT Scorecard shows he was 20 years old, 69 inches tall and weighed
187 pounds.  The scorecard also shows he completed 42 pushups, 54 sit-ups,
and that he completed the two mile run in 21 minutes and 31 seconds.  The
applicant did not complete the run in the maximum time allowed, and as a
result he failed the APFT.

5.  On 1 October 1995, the applicant was administered a record APFT.  The
APFT scorecard shows he completed 41 pushups and 56 sit-ups.  It also shows
that in lieu of the 2-mile run event he elected to take the alternate 6.2
miles bicycle event.  The applicant was required to complete a minimum of
42 push-ups.  As a result, of his not meeting the minimum standard for push-
ups, he failed the APFT.  Additionally, the APFT scorecard shows that he
did not complete the alternate bicycle event and received a “No Go.”

6.  On 13 October 1995, the applicant was counseled on his failure to pass
the APFT and given one month to prepare himself to take another APFT.  At
the time, he was told that if he was unable to pass the APFT, his records
would be FLAGGED, and he would be barred from reenlistment until he was
able to pass the APFT and meet the Army's weight control standards.

7.  The applicant noted his non-concurrence with the counseling statement
and indicated that he was wrongfully judged on the number of pushups he
completed, and the record keeper did not accurately count all of his
pushups.

8.  On 5 November 1995, the applicant was counseled on the wear and
appearance of his uniform, his inability to meet the height and weight
standards, the need to get his military license upgraded, and the need to
provide for his family and pay his bills.

9.  On 14 November 1995, the applicant was administered another APFT.  He
completed 45 pushups, 60 sit-ups, and completed the 6.2 alternate bicycle
event in 27 minutes and 24 seconds.  The minimum time required for the
applicant to complete the alternate bicycle event for his age group was 24
minutes, and as a result, he received a “No Go” for the event and he failed
the APFT.

10.  On 17 November 1995, he was counseled on his failure to meet the
Army's height and weight standards and he concurred with the counseling.

11.  On 6 February 1996, the applicant was counseled for having a $498.00
delinquent account at the Ramstein Enlisted Club.

12.  On 13 February 1996, the applicant was counseled regarding his duties,
responsibilities, and wear of the proper uniform required to maintain
adequate work performance.  During this counseling session, he was also
charged to pass his next APFT, and to lower his total body fat percentage
to meet weight control standards.  He was further informed that his failure
of the APFT and/or to meet weight control standards could subject him to
separation from the Army.  The applicant concurred with both counseling
statements.

13.  On 4 March 1996, the applicant again took the APFT.  The APFT
scorecard shows he completed 42 pushups, 65 sit-ups, and the 6.2 miles
alternate bicycle event in 37 minutes and 30 seconds, which again resulted
in a failure of his APFT.  He was also counseled on his failure to meet the
Army's weight control standards, and he concurred with this counseling.

14.  The applicant’s Official Military Personnel File (OMPF) contains a
Report of Medical Examination (Standard Form 88).  This document shows the
applicant underwent a separation physical examination on 20 May 1996, and
he was scheduled for a follow-up orthopedic appointment, and appearance
before an MOS Medical Retention Board (MMRB).

15.  On 4 June 1996, the applicant appeared before a MMRB.  The board found
the applicant qualified to perform the duties of his MOS, and recommended
he be retained in his MOS.  As a result, the applicant was medically
cleared for retention/separation.

16.  On 25 June 1996, the applicant's unit commander recommended he be
eliminated from the service under the provisions of Army Regulation 635-
200, Chapter 13, for unsatisfactory performance.  The applicant’s commander
cited the applicant's inability to operate within the confines of good
order and discipline, APFT failures, delinquent debts, and two military
police reports of domestic disturbances as the reasons for taking the
separation action.

17.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated separation action, the effects of such a
separation, the rights available to him, and the effect of any action taken
by him in waiving his rights.  Subsequent to this counseling, the applicant
submitted a statement on his own behalf.

18.  In his statement, he indicated that there was no probable cause for
the separation action taken against him.  He states that his unit commander
forced him to take the APFT even though he was on a profile which allowed
him to ride the bicycle at his own pace and distance.  The applicant also
claims that his unit commander wrote a letter to the medical board that
evaluated him recommending he receive a medical discharge board because he
had a medical condition that altered his performance.  The applicant
further indicated that he was a private/E-2 three times, and with three
dependents, he struggled to make ends meet; however, he ultimately paid the
Ramstein Enlisted Club card debt in full.  He also stated that the two
incidents with the police were the result of mere arguments and not abuse.

19.  On 7 July 1996, the separation authority approved the applicant's
separation action under the provisions of AR 635-200, Chapter 13.

20.  On 26 July 1996, the applicant was honorably released from active duty
(REFRAD).  The separation document issued to him at the time confirms that
he was REFRAD under the provisions of AR 635-200, Chapter 13, by reason of
unsatisfactory performance.  This document also shows the applicant
completed a total of 1 year, 7 months, and 28 days of active military
service, and that he held the rank of private/E-2 on the date of his
separation.

21.  The applicant provides a VA Rating Decision that shows he was awarded
a 10 percent service connected disability rating for "medial meniscus tear
and degenerative disease" and for "left knee instability.

22.  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.

23.  Field Manual 21-20 contains guidance on the APFT.  It establishes the
following minimum requirements of Soldiers in the applicant’s age group:
42 push-ups, 53 sit-ups, 15:54 minute 2-mile run, and a 24:00 minute 6.2
mile alternate bike riding event.

24.  Army Regulation 635-40 establishes the Army Physical Disability
Evaluation System and sets forth the policies, responsibilities, and
procedures that apply in determining whether a Soldier is unfit because of
physical disability to reasonably perform the duties of his or her office,
grade, rank, or rating.  Paragraph 1-5 states, in pertinent part, that a
Soldier who is charged with an offense or is under investigation for an
offense for which he could be dismissed or given a punitive discharge may
not be referred for disability processing.  Paragraph 2-2b states, in
pertinent part, 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.

25.  Chapter 3 of Army Regulation 635-40 contains the policy and outlines
the standards for determining unfitness because of physical disability.  It
states, in pertinent part, 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, rank, or rating.  Paragraph 3-3b(1) states, in pertinent part, that
for an individual to be found unfit by reason of physical disability, he
must be unable to perform the duties of his office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his HD should be changed to a medical
discharge or that the narrative reason for discharge be changed to reflect
ETS instead of unsatisfactory performance has been carefully considered.
However, the evidence of record confirms he failed four consecutive APFTs.
It also shows he was counseled on his inability to pass the APFT, and that
his continued failure could result in his early separation from the Army.

2.  Although the applicant was treated for the medical conditions he
outlines, there is no evidence of record that supports his claim that these
conditions rendered him unfit to perform his military duties, or supported
his separation processing through medical channels.  To the contrary, the
MMRB that evaluated him found him fit to perform the duties of his MOS.  As
a result, there is insufficient evidence to show he was suffering from a
disabling condition that rendered him unfit to perform the duties of his
grade and specialty, or that medically disqualified him from further
service at the time of his separation.

3.  The evidence submitted by the applicant confirms the VA assigned him a
disability rating for service connected medical conditions, and providing
him medical care and benefits based on these medical conditions.  However,
a VA decision to provide the applicant a disability rating does not mean
this condition was medically unfitting for retention or separation at the
time of his separation, or that these conditions supported his processing
through medical channels at that time.

4.  The applicant’s separation processing was accomplished in accordance
with the applicable regulation.  Lacking evidence to the contrary, it is
concluded that all requirements of law and regulation were met, and the
rights of the applicant were fully protected throughout the separation
process.

5.  The applicant enlisted in the Army on 29 November 1994 for a period of
three years, and was REFRAD after completing only 1 year, 7 months and 28
days of active military service.  Therefore, he did not complete his
enlistment, and lacking any evidence of an error or injustice in his
separation processing, there is an insufficient evidentiary basis to
support correcting his record to show he completed his term of enlistment,
or that he was separated by reason of ETS.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 July 1996.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
25 July 1999.  He failed to file within the 3-year statute of limitations
and has not provided a compelling explanation or evidence to show that it
would be in the interest of justice to excuse failure to timely file in
this case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___CG   _  ___RTD _  __LVB __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Curtis Greenway____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000370                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/10/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1996/07/26                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsatisfactory Performance              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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