RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 MAY 2006
      DOCKET NUMBER:   AR20050008117


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 that his discharge by reason of unsatisfactory
performance be changed to reflect that he was medically discharged.

2.  The applicant states, in effect, that he suffered and complained of
pain in his lower back and hip area while running on numerous occasions
while on active duty and he was prescribed pain pills and muscle relaxers.
After his separation he saw a chiropractor which gave him some relief for
some time until his pain returned.  He further states that he eventually
had to have surgery for two ruptured disks that were discovered through a
MRI.  He goes on to state that had the military done an MRI and discovered
his real problem, he would have been able to complete his enlistment.  He
also states that his record of service will bear out that he was not an
unsatisfactory Soldier, but his medical condition prevented him from
passing the Army Physical Fitness Test (APFT).

3.  The applicant provides copies of his civilian and military medical
records regarding the treatment of his back problems.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 September 1995.  The application submitted in this case was
received on 3 June 2005.

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.  He enlisted in the Regular Army on 7 January 1992 for a period of 5
years and training under the military police and airborne training option.
He successfully completed his training and was initially assigned to Fort
Bragg, North Carolina, for duty as a military policeman.  He was advanced
to the pay grade of E-3 on 7 September 1992.

4.  On 20 July 1993, the applicant was seen at the emergency room at Fort
Bragg with a complaint of an injured lower back.  He complained that he
injured his back the previous week while lifting some weights during work.
He was prescribed medications and referred to physical therapy.

5.  On 1 February 1994, he was advanced to the pay grade of E-4 and on
28 February 1994, he was transferred to Fort Benning, Georgia, for duty as
a traffic accident investigator.

6.  On 13 October 1994, he underwent x-rays for a complaint of trauma to
the lower back.  The Radiological Report indicates that no abnormalities of
the lumbosacral spine were seen and that all vertebral bodies were normally
outlined.

7.  The applicant continued to be treated for lower back pain and received
temporary profiles, medication and physical therapy.

8.  On 1 May 1995, the applicant was counseled regarding his failure of the
APFT on 28 April 1995.  He had failed to complete the 2-mile run within the
prescribed time.  He was advised that if he failed to meet Army standards
within 90 days, action would be taken to separate him from the service
under the provisions of Army Regulation 635-200, chapter 13, for
unsatisfactory performance.  The applicant concurred with the counseling.

9.  The applicant took a diagnostic APFT on 26 June 1995 and passed it.  He
then requested that he be allowed to take a record APFT on 28 June 1995 and
his request was approved.  However, he took the record APFT on 28 June 1995
and again failed to complete the 2-mile run within the prescribed time.

10.  On 19 July 1995, the applicant’s commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 13, for unsatisfactory performance due to
his two consecutive failures of the APFT.

11.  He underwent a medical/physical on 9 August 1995 and indicated that he
problems with his lower back and was on a T-3 profile.  The examining
physician deemed him qualified for separation.

12.  He underwent a mental status examination on 17 August 1995 and was
deemed to meet the retention standards of Army Regulation 40-501.  The
examining psychiatrist cleared him for any action deemed appropriate by the
chain of command.

13.  The appropriate authority approved the recommendation for discharge on
1 September 1995 and directed that he be furnished an Honorable Discharge
Certificate.

14.  Accordingly, he was honorably released from active duty (REFRAD) on
21 September 1995, under the provisions of Army Regulation 635-200, chapter
13, for unsatisfactory performance.  He had served 3 years, 8 months and 15
days of total active service.  He was transferred to the United States Army
Reserve (USAR) Control Group (Reinforcement) to complete his statutory
service obligation.

15.  The civilian medical records provided by the applicant indicate that
in September 2004, the applicant underwent an MRI and was diagnosed as
having a mild degeneration of the L4-5 and L5-S1 discs along with small
broad-based central protrusion at L4-5.  In October 2004, the applicant was
seen by a physician in Montgomery, Alabama, for back and left leg pain.  He
indicated to the physician that he had had a little trouble since hurting
his back in a parachute jump.  He underwent surgery (Lumbar Laminectomy L5-
S1) on 15 November 2004 to repair the herniated discs.

16.  Army Regulation 635-200, chapter 13, in effect at the time,
established policy and provided guidance for eliminating enlisted personnel
for unsatisfactory performance and who were unsuitable for further military
service.  An individual could be separated for unsatisfactory performance
if it was determined that the member will not develop sufficiently to
participate satisfactorily in further training and/or become a satisfactory
soldier.

17.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  Consequently, due to the two concepts involved, an
individual's medical condition, although not considered medically unfitting
for military service at the time of processing for separation, discharge or
retirement, may be sufficient to qualify the individual for VA benefits
based on an evaluation by that agency.

18.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation, provides 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 member may
reasonably be expected to perform because of his or her office, rank, grade
or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army
Regulation 635-200, chapter 13, was administratively correct and in
conformance with applicable regulations with no indication of any
violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  While the applicant was treated for lower back pain while on active
duty, there is insufficient evidence to show that his condition was such
that it required him to be processed within the Physical Disability
Evaluation System (PDES) because he could not perform the duties of his
military occupational specialty (MOS).

4.  The applicant was deemed physically qualified for separation by a
physician at the time of his REFRAD and it appears that he did not receive
surgery for his condition until 9 years after his REFRAD, which further
supports that his separation was appropriate at the time and was conducted
in accordance with the applicable regulations.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 September 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 September 1998.  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

___MP __  ___GP __  ___RN __  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.




                                  ___ Margaret Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008117                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/05/11                              |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |1995/09/21                              |
|DISCHARGE AUTHORITY     |AR635-200/CH13 . . . . .                |
|DISCHARGE REASON        |UNSAT PERF                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |572/A49.00                              |
|1.144.4900              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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