RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            02 May 2006
      DOCKET NUMBER:   AR20050011971


      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:

|     |Mr. William Powers                |     |Chairperson          |
|     |Ms. Sherry Stone                  |     |Member               |
|     |Mr. Randolph Fleming              |     |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 general discharge due to unsatisfactory
performance be upgraded to an honorable discharge by reason of physical
disability.

2.  The applicant states that he sustained injuries while serving his
country and if justice is ever to be done, now is the time.  He goes on to
state that he is a disabled American Veteran and he desires his children
and grandfather to know that he served honorably.

3.  The applicant provides a copy of his report of separation (DD Form
214), copy of his General Discharge Certificate and documents from the
Department of Veterans Affairs indicating that he has been awarded a 100%
service connected disability rating.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 September 1991.  The application submitted in this case was
received on 18 August 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 in Milwaukee, Wisconsin, with a moral
waiver on 3 May 1990, for a period of 4 years, training under the infantry,
airborne, and ranger training option and enrollment in the Army College
Fund.  He was 67 inches tall and weighed 200 pounds at the time of
enlistment.

4.  He completed his one-station unit training and airborne training at
Fort Benning, Georgia, and was transferred to the Ranger Training Brigade
on 7 September 1990, to undergo the Ranger Indoctrination Program (RIP), a
course that must be completed before being assigned to a Ranger Regiment.
It is a 4-week course that consists of physical training and continuous
preparation for service in the Regiment.

5.  It appears that the applicant did not pass the RIP, that he was
temporarily disqualified from the RIP due to failure of his Army Physical
Fitness Test (APFT) and that he was transferred to Headquarters and
Headquarters Company, Ranger Support Element at Fort Benning on 27
September 1990.  He was advanced to the pay grade of E-2 on 3 November
1990.

6.  On 19 December 1990, nonjudicial punishment (NJP) was imposed against
him for two specifications of failure to obey orders and for being drunk on
duty.  His punishment consisted a reduction to the pay grade of E-1, extra
duty and restriction.  He did not appeal his punishment.

7.  On 20 June 1991, NJP was imposed against him for being absent without
leave from 12 June to 14 June 1991 and for being absent from his place of
duty on 26 May 1991.  His punishment consisted of a forfeiture of pay,
extra duty and restriction.  He did not appeal his punishment; however, he
explained that he was delivering horses to Alabama with his fiance’s father
and his truck broke down.  Additionally, he was unaware that he was on the
duty roster for staff duty.

8.  It appears that as early as 6 June 1991, the applicant exceeded his
maximum body fat allowance during weigh-in.  He was counseled regarding his
responsibility to make satisfactory progress in losing the weight or that
he could be subject to separation.  On 28 June 1991, medical personnel
cleared the applicant for entry in the overweight program (determined that
there was no underlying medical condition that contributed to his weight
gain or prevented him from being in the weight control program).

9.  The applicant failed his APFT on 10 June 1991 by not completing the 2-
mile run within the time prescribed for his age year group (20).  He was
again counseled and concurred with the counseling.

10.  On 19 July 1991, the commander counseled the applicant and informed
him that he was initiating action to separate him from the service under
the provisions of Army Regulation 635-200, chapter 13, due to
unsatisfactory performance.  The applicant responded to the effect that he
did not agree with the commander’s assessment that he was an unsatisfactory
Soldier.

11.  On 25 July 1991, the applicant underwent a separation medical and
physical examination and was deemed by medical personnel to be qualified
for separation.

12.  He underwent a mental status evaluation on 5 August 1991 and was
deemed to be mentally responsible, able to distinguish right from wrong and
to adhere to the right.  He was cleared for any administrative action
deemed appropriate by the chain of command.

13.  On 26 August 1991, the commander initiated action to separate him from
the service under the provisions of Army Regulation 635-200, chapter 13,
due to unsatisfactory performance.  He cited the applicant’s failure to go
to his place of duty on numerous occasions, his APFT failure, his being
AWOL and his failure to meet Army height/weight and body fat standards as
the basis for his recommendation.

14.  After consulting with counsel, the applicant elected to submit a
statement in his own behalf.  The commander annotated on the separation
packet that the applicant was given 7 days to submit his statement and
failed to do so.  It appears that the applicant also got married in August
1991.

15.  The appropriate authority approved the recommendation and directed
that he be furnished a General Discharge Certificate.

16.  On 6 September 1991, he was discharged under honorable conditions
under the provisions of Army Regulation 635-200, chapter 13, for
unsatisfactory performance.  He had served 1 year, 4 months and 2 days of
total active service. He weighed 216 pounds at the time of separation and
there is no indication that he made any progress in the weight control
program.

17.  The documents provided by the applicant show that as of 14 June 2005,
the applicant is rated by the VA as being as 80% disabled and for VA
purposes is considered 100% totally disabled.  There is no description of
his disabilities contained in those documents.

18.  On 15 September 1992, he applied to the Army Discharge Review Board
for an upgrade of his discharge contending that he had an incapacitating
physical illness which was the direct cause of the conduct that served as
the basis for his discharge.

19.  The ADRB determined that the applicant had not submitted sufficient
evidence to establish that an incapacitating physical illness was the
direct cause of his misconduct and substandard performance and voted
unanimously to deny his request on 3 May 1995.

20.  A review of his records fails to show any indication that the
applicant was diagnosed as having a medical condition that contributed to
his overweight condition or to his misconduct/unsatisfactory performance.

21.  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.  A discharge under honorable conditions is normally considered
appropriate.

22.  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.

23.  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.

24.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

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.  The applicant’s contentions and supporting documents have been noted
and found to be without merit.  There is no evidence in the available
records to show that he was diagnosed with a condition that caused him to
gain weight or to perform unsatisfactorily.  Additionally, there is no
evidence to show that he ever surfaced the issue as being the underlying
cause for his situation at the time.

4.  Therefore, he has failed to show through the evidence submitted and the
evidence of record that separation through medical channels was warranted
at the time of separation or that he was not found fit for separation.

5.  The fact that the VA, in its discretion, has awarded the applicant a
disability rating is a prerogative exercised within the policies of that
agency.  It does not, in itself, establish physical unfitness for
Department of the Army purposes.

6.  A review of the applicant’s overall record shows that his service
simply did not rise to the level of a fully honorable discharge.

7.  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.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 3 May 1995.  As a
result, the time for the applicant to file a request for correction of any
error injustice to this Board expired on 2 May 1998.  The applicant did not
file within the ABCMR's 3-year statute of limitations and has not provided
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

___WP__  ___SS  __  ___RF __  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.




                                  ______William Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011971                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060502                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1991/09/06                              |
|DISCHARGE AUTHORITY     |AR635-200/ch13 . . . . .                |
|DISCHARGE REASON        |Unsat perf                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |572/a49.00/unsat perf                   |
|1.144.4900              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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