IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080007237
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests a medical discharge.
2. The applicant states that her medical files were not reviewed.
3. The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted on 18 November 1992 and trained as a legal specialist.
3. On 10 January 1994, the applicant failed the Army Physical Fitness Test (APFT). She was counseled on 13 January 1994 and it was recommended that she be placed in the overweight program.
4. On 25 March 1994, the applicant failed the AFPT.
5. The applicants DA Form 2A (Personnel Qualification Record, Part I), prepared on 5 April 1994, shows the applicants physical profile was 111111.
6. On 12 April 1994, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance (due to failure of two consecutive APFTs). The separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.
7. On 15 April 1994, the applicant elected to waive a separation physical examination.
8. Accordingly, the applicant was released from active duty on 16 May 1994 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. She had served a total of 1 year, 5 months, and 29 days of creditable active service.
9. There is no evidence of record which shows the applicant was diagnosed with any medical condition prior to her release from active duty on 16 May 1994.
10. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commanders judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.
11. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.
12. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.
DISCUSSION AND CONCLUSIONS:
The applicants contentions were noted. However, her physical profile at the time of her separation was 111111. She elected to waive a separation physical examination on 15 April 1994. There is no medical evidence of record that shows the applicant had any medical condition prior to her release from active duty on 16 May 1994. There is also no evidence of record to show she was ever medically unfit to perform her duties. Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ __xx____ ____xx__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
_ _______ xxxx____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080007237
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20080007237
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090007475
Application for correction of military records (with supporting documents provided, if any). The applicant requests correction of her military records to show that she was retired due to physical disability. There is no available medical evidence showing that the applicant was medically unfit to perform the requirements of her rank at the time of her retirement.
ARMY | BCMR | CY2006 | 20060007654C070205
Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. There is also no evidence of record to show he was ever medically...
ARMY | BCMR | CY2014 | 20140013149
He provided service medical records, dated April 2012, which show he was treated for back pain. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if...
ARMY | BCMR | CY2011 | 20110008626
A DA Form 4856, dated 22 September 2009, shows: * her first sergeant (1SG) counseled her and informed her she was considered an APFT failure * a suspension of favorable personnel actions was completed and her records were flagged until she passed the APFT * she was informed all APFT failures would be given a record APFT within 90 days until successfully completed * she was placed in a remedial physical fitness program to help her pass the APFT * she was informed continued APFT failure...
ARMY | BCMR | CY2011 | 20110005243
The applicant requests, in effect, that her uncharacterized discharge be upgraded to an honorable or a medical discharge. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Service medical records * Service personnel records * DVA medical records CONSIDERATION OF EVIDENCE: 1. On 11 December 1982, the applicants unit commander initiated action to separate her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted...
ARMY | BCMR | CY2011 | 20110002181
Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Therefore, there is insufficient evidence to show a medical...
ARMY | BCMR | CY2003 | 2003091742C070212
A 3 November 2000 Report of Medical History showed she had indicated she had been raped by the first sergeant, that she had surgery on her foot in April 2000, and that she had spent time in a mental ward at a hospital in September 2000 and was treated for depression. Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. However, the evidence of record shows the applicant stated in...
ARMY | BCMR | CY2014 | 20140017372
There is no evidence in the applicant's records that indicates he was found unfit to perform his military duties due to an unfitting medical condition prior to his transfer to the Retired Reserve. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. The Army must find that a service member is physically unfit to...
ARMY | BCMR | CY2009 | 20090006812
Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. However, medical evidence of record shows that on 1 April 1991...
ARMY | BCMR | CY2011 | 20110012549
The board finds the applicant fit by presumption. Paragraph E3.P3.5.3 (Overcoming the Presumption) of DODI 1332.38 states the presumption of fitness rule shall be overcome when: a. an acute, grave illness or injury occurs within the presumptive period that would prevent the member from performing further duty if he or she were not retiring; or b. a serious deterioration of a previously-diagnosed condition, to include a chronic condition, occurs within the presumptive period and the...