IN THE CASE OF:	  

		BOARD DATE:	        19 March 2009

		DOCKET NUMBER:  AR20080019034 


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, in effect, that her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show she was medically discharged vice separated while in an entry level status with uncharacterized service.

2.  The applicant states, in effect, she received veterans benefits within two months of being discharged.  Her narrative reason for separation was based on length of service and not her service connected disability.  She states that she has acquired her bachelor’s degree and she has been told the type of discharge that she received is barring her from obtaining employment working with veterans.

3.  The applicant provides a copy of her DD Form 214. 

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Regular Army under her maiden name of Mc____ on 7 August 1992 and completed basic training.

4.  The applicant's DA Forms 705 (Army Physical Fitness Test Scorecards) show she failed the Army Physical Fitness Testing (APFT) every time she was evaluated.  It is also noted the applicant did not complete the APFT, on 
10 November 1992, due to being on an extended profile.

5.  The applicant was counseled following each APFT failure.  On 4 January 1993, she indicated that she was not adverse to being released from the service but she resented the fact that the drill sergeants thought her medical conditions were unreal.  She indicated that her conditions did not exist prior to entry on active duty.

6.  On 19 January 1993, the applicant's unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 11 for failure to pass APFTs, a poor attitude, and weak performance.

7.  A separation worksheet prepared by the applicant indicates that she did not want any counseling related to her transition back into civilian life and she waived her right to a physical examination prior to separation.

8.  On 22 January 1993, the discharge authority approved the separation action.

9.  The applicant was separated on 27 January 1993 under the provisions of Army Regulation 635-200, paragraph 11-3a (Entry Level Performance and Conduct).  She had completed 5 months and 21 days of creditable active service and her service was uncharacterized.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status.  In pertinent part, it states initiation of separation proceedings is required for Soldiers who have two consecutive failures of the Army Physical Fitness Test.  The regulation requires that 

separation action will be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  The regulation requires uncharacterized service for separation under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that her DD Form 214 be corrected to show she was medically discharged due to her service connected disability vice separated while in an entry level status with uncharacterized service.

2.  The applicant was separated while in an entry level status for unsatisfactory performance and conduct due to failure to pass APFTs, a poor attitude, and weak performance.  

3.  While there is an indication the applicant may have had a medical condition that contributed to those APFT failures, there is no available medical documentation to support her contention that she suffered or acquired a condition while she was on active duty that warranted processing through the physical disability process.  

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X  ___  ___X___  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.



      _______ _   X_______   ___
               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)                                         AR20080019034



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ABCMR Record of Proceedings (cont)                                         AR20080019034



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