IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009

		DOCKET NUMBER:  AR20090001509 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

	a.  item 18a (Member Contributed to Post-Vietnam Era Veteran's Educational Assistance Program (VEAP)) from "No" to "Yes"; and

	b.  item 28 (Narrative Reason for Separation) from "Unsatisfactory Performance" to "Medical."

2.  The applicant states that he had problems with his back for months and was finally diagnosed with a degenerative disc disease and put on a 5-year "No Run" physical profile; however, he was discharged for unsatisfactory performance.  He adds that he did, in fact, contribute to the VEAP. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 May 2008, and a letter, dated 7 July 2008, from his former Junior Reserve Officers Training program (JROTC) senior Army instructor, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years under the Delayed Entry Program (DEP) on 3 October 2006.  As part of his enlistment, he completed a DA Form 2366 (Montgomery GI Bill-Basic Enrollment) electing to enroll in the MGIB.
2.  The applicant's records also show that he enlisted in the Regular Army Regular Army in the rank/grade of private first class (PFC)/E-3 for a period of 5 years on 2 August 2007.  He completed basic combat training at Fort Sill, OK, and proceeded to Fort Huachuca, AZ, to attend advanced individual training for military occupational specialty (MOS) 35M (Human Intelligence Collector).  

3.  The fact and circumstances of the applicant's illness and/or injury are not available for review with this case; however, his records show he underwent a magnetic resonance imaging (MRI) on 16 January 2008 that revealed no significant vertebral compression, disc flattening aruthrosis, or degenerative change. 

4.  The applicant's DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) shows he failed three consecutive diagnostic APFTs on 9 January 2008 (push-up event and 2-mile run event), 21 February 2008 (push-up event, sit-up event, and 2-mile run event), and 20 March 2008 (2-mile run event).

5.  On 14 April 2008, the applicant was issued a permanent physical profile for low back pain.  The profiling officer assigned a "2" under the "L" factor of the applicant’s PULHES.  This profile indicated that the applicant was able to carry assigned weapon, move with a fighting load for 2 miles, able to carry chemical defense equipment, able to construct a fighting position, able to do 3-5 second rushes under direct/indirect fire, and able to take the APFT with the exception of the 2-mile run event.

6.  On 16 April 2008, the applicant was counseled by his platoon sergeant regarding his responsibilities as a Soldier to perform those physical demands allowed by his physical profile. 

7.  On 6 May 2008, the applicant was medically evaluated by the primary care medical staff at the Military Intelligence Student Clinic and an orthopedic surgeon for chronic back pain.  The medical office indicated that the applicant was found medically capable of performing his military duties and training within the limits of his permanent profile issued by the orthopedic specialist.

8.  On 20 May 2008, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), for unsatisfactory performance.  The immediate commander cited the applicant’s failure to participate in required training due to lack of motivation to perform within the limits of his profile and recommended an Honorable Discharge Certificate. 

9.  On 20 May 2008, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further declined making a statement in his own behalf.

10.  On 21 May 2008, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 because of unsatisfactory performance.  The immediate commander remarked that the applicant failed to participate in required training due to his lack of motivation to perform within the limitations of his profile and that based on performance and attitude, other disposition was inappropriate.  

11.  On 22 May 2008, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an honorable characterization of service.

12.  On 22 May 2008, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance, waived the rehabilitative requirements, and directed the applicant be furnished an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 30 May 2008.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of honorable and that he completed a total of 9 months and 29 days of creditable military service. Item 15a of this form shows an "X" placed in the "No" block.

13.  In a letter of support, dated 7 July 2008, the applicant’s former senior JROTC instructor states that during the applicant’s time in the JROTC, he rose through the ranks and became battalion command sergeant major.  As a cadet, he was dependable and trustworthy.  The former instructor also states that he maintained contact with the applicant and was made aware of a medical injury that the applicant sustained during basic training when he fell during an obstacle course.  As a result of this injury, he was limited in his physical training and his physical limitation profile existed during his MOS training.  He concludes that the applicant’s discharge was inequitable and improper.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

16.  Paragraph 3-1 provides that the mere presence of 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated.

17.  Army Regulation 40-501, 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 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.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  Item 15a shows a yes or no entry.  If a Soldier contributed to VEAP and did not get money back, mark "Yes."  For those who enlisted before 1984, contributed to VEAP, and received their money back, mark "No."  For any Soldier who enlisted after 1985, mark "No."

19.  the VEAP was offered in lieu of the MGIB to servicemembers who served between 1 January 1977 and 30 June 1985.  In that program, the Government matched every dollar in servicemember contributions with $2.00.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically discharged instead and that he contributed to the VEAP program.

2.  With respect to the applicant's contribution to the VEAP, the evidence of record shows that the applicant contributed to the MGIB.  There is no evidence in the available record and the applicant did not provide any evidence that he contributed any money towards a post–Vietnam era VEAP.  MGIB and VEAP are two different educational programs.  Nevertheless, even if the applicant contributed to VEAP, the applicant enlisted after 1985 and the entry would have been a "No."  Therefore, item 15a is correctly annotated as "No" on his DD Form 214.

3.  With respect to the applicant's narrative reason for separation, the evidence of record shows that the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.   All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There does not seem to be an error or an injustice in his discharge. 

4.  The evidence of record confirms the applicant was separated under the provisions of chapter 13 of Army Regulation 635-2300 due to unsatisfactory performance.  Absent his unsatisfactory performance, there was no fundamental reason to process the applicant for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance."

5.  With respect to the applicant's medical discharge, the evidence of record shows that the applicant was medically evaluated and was found medically capable of performing his military duties and training within the limits of his physical profile.  Notwithstanding the applicant's physical profile, there is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that would have warranted his referral to the physical disability evaluation system.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated for physical disability.

6.  The Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his/her rank, grade or specialty and assign an appropriate disability rating before he/she can be medically separated.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the physical disability evaluation system.  In this case the applicant was honorably discharged by reason of unsatisfactory performance. 

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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20090001509



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ABCMR Record of Proceedings (cont)                                         AR20090001509



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