RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 AUGUST 2005
      DOCKET NUMBER:  AR20050000480


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Paul Smith                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard Hassell               |     |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, disability retirement or separation.

2.  The applicant states he is currently receiving a 10 percent service
connected disability rating from the Department of Veterans Affairs for his
right knee condition which was diagnosed as torn meniscus.  He states that
the meniscus was removed and the bone polished and shaved.

3.  He states he is seeking employment and finds that the uncharacterized
discharge is a hindrance to his future employment.

4.  The applicant provides a copy of his separation document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 February 1996.  The application submitted in this case
is dated
17 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.  Records available to the Board indicate the applicant entered active
duty on
12 June 1995.  His record does not contain an entrance physical
examination.

4.  On 25 August 1995 the applicant was counseled about the expectations
and goals of the training he was undergoing, including the requirement to
continue to increase his physical fitness with an eventual goal of passing
his diagnostic physical fitness test.  The applicant acknowledges the
counseling and made no comment.

5.  On 13 September 1995 the applicant was counseled regarding his lack of
motivation and failure of the Army Physical Fitness Test (APFT).  The
counseling statement also noted the applicant's appearance, initiative,
conduct, military courtesy, motivation, self-discipline, uniform and wall
locker inspections were rated as fair while his physical fitness was rated
as poor.  The applicant again acknowledged the counseling, but made no
statement.

6.  A sick slip, contained in the applicant's file indicates he was seen by
medical personnel with a complaint of knee pain on 20 September, 27
September and
17 October 1995.  However, following his 20 September medical visit he was
told to schedule a physical therapy appointment, following the 27 September
visit he was advised to avoid running and jumping for 3 days, and following
the
17 October visit he was advised to run at his own pace for 4 days and then
take the APFT on 22 October 1995 as scheduled.  In each instance, however,
he was returned to duty.  There were no other service medical records
available to the Board.

7.  The applicant was counseled again on 8 November and 8 December 1995 for
failing the APFT on those same days.  His test scorecard indicates the
applicant was not passing the run portion of the APFT, but did increase his
score in the push-up and sit-up events between the 8 November and 8
December test dates. The applicant acknowledged receipt of the counseling
statement, but made no statements.

8.  On 8 December 1995 the applicant was notified by his unit commander
that he was being considered for an administrative separation under the
provisions of Army Regulation 635-200, chapter 11 (Entry Level Status
Performance and Conduct.)  His commander cited his APFT failure and
inability to meet minimum standards for successful completion of training
because of a lack of aptitude, ability, motivation, or self-discipline.
The recommendation informed the applicant that his service would be
uncharacterized.

9.  The applicant acknowledged receipt of the proposed separation action
and waived his attendant rights, including his right to a separation
physical examination.

10.  The applicant was apparently given another opportunity to pass the
AFPT on 8 February 1996, but failed.  He was counseled, acknowledged the
counseling, but made no statement.

11.  The separation action was approved and on 26 February 1996 the
applicant was discharged for entry level performance and conduct.  His
service was uncharacterized.  He had 8 months and 15 days of creditable
service at the time.

12.  There is no evidence, other than the applicant's own statement in his
application to the Board, that he is receiving any disability compensation
from the Department of Veterans Affairs.

13.  Army Regulation 635-200, Chapter 11, provides for the administrative
separation of Soldiers in an entry-level status who cannot meet the minimum
standards prescribed for successful completion of training.  The Soldier is
required to be notified of the proposed separation and is entitled to
consult counsel and submit statement in his or her own behalf.  The service
of Soldiers separated under this chapter will be uncharacterized.

14.  Army Regulation 635-40 states that commanders of medical treatment
facilities who are treating Soldiers in an assigned, attached, or
outpatient status may initiate action to evaluate the Soldier's physical
ability to perform the duties of his or her office, grade, rank, or rating.
 Additionally, unit commander's who believe that a Soldier in his or her
command is unable to perform the duties of his or her office, grade, rank
or rating because of physical disability, may also refer a Soldier to the
responsible medical treatment facility for evaluation.

15.  Title 10, United States Code, Section 1201, provides for the physical
disability retirement of a member who has at least 20 years of service or a
disability rated at least 30 percent.

16.  Army Regulation 635-40 also states that often a Soldier may be found
unfit for any variety of diagnosed conditions, which are rated essentially
for pain.  Inasmuch as there are no objective medical laboratory testing
procedures used to detect the existence of or measure the intensity of
subjective complaints of pain, a disability retirement cannot be awarded
solely on the basis of pain.

17.  Title 10, United States Code, Section 1203, provides for the physical
disability separation of a member who has less than 20 years service and a
disability rated at less than 30 percent.  With the exception of Soldiers
with less than 6 months of active Federal service, Soldiers with disability
rating of less than 30 percent receive disability severance pay.  Soldiers
with less than 6 months of active Federal service are not entitled to
severance pay.

18.  Title 38, United States Code, permits the Department of Veterans
Affairs to award compensation for disabilities which were incurred in or
aggravated by active military service.  The Department of Veterans Affairs,
which has neither the authority nor the responsibility for determining
physical fitness for military service, awards disability ratings to
veterans for conditions that it determines were incurred during military
service and subsequently affect the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the Board presumes that the
applicant's administrative separation was accomplished in accordance with
established policies and provisions of law and regulation.

2.  The regulation governing the separation action provided for the
applicant’s participation in the process.  If either the applicant’s
commander or his medical treatment officials truly believed he had a
medical basis for separation there would have been no reason not to pursue
that avenue as a basis for separation.

3.  The fact that the applicant may have been treated for knee pain while
in the Army, or that he may be receiving disability compensation from the
Department of Veterans Affairs does not demonstrate any error or injustice
in the Army separation action.  The Department of Veterans Affairs,
operating under its own policies and regulations, assigns disability
ratings as it sees fit.  Any rating action by the Department of Veterans
Affairs does not compel the Army to modify its basis for separation.

4.  In order to justify correction of a military record the applicant must
show, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 February 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 February 1999.  The applicant did not 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

___PS __  ___YM __  ___LH___  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.




                                  _______Paul Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000480                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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