BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011415 


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 the narrative reason for his uncharacterized discharge be changed to a medical discharge.

2.  The applicant states that he was told he would receive a medical discharge.

3.  The applicant provides a listing of medical visits and appointments that he made during the period 2 May 2007 through 21 June 2007 as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's record shows that he participated in the U.S. Army Reserve Delayed Enlistment Program during the period 9 January 2007 through 25 April 2007.  On 26 April 2007, he enlisted in the Regular Army and entered active duty.  On 29 August 2007, the applicant was discharged from the Army after completing 4 months and 4 days of active duty service.  The highest rank/grade he attained during his military service was private (PV1)/pay grade E-1.

2.  The applicant's record contains 10 DA Forms 4856 (Developmental Counseling Form) and two Basic Combat Training (BCT) Soldier in Training Performance Record forms which were rendered to document adverse counseling sessions that occurred during the applicant's initial entry training.  These counseling documents show the applicant was counseled repeatedly regarding the amount of mandatory training he had missed due to going to sick call, going to medical appointments, being in a medical "quarters" status, his lack of motivation, and his inability to complete the Army Physical Fitness Test (APFT).  The applicant was repeatedly informed that failure to participate in required training and pass the APFT would prevent his successful completion of BCT.  The applicant indicated his agreement with the observations, recommendations, and decisions rendered in every counseling session and authenticated the counseling forms with his signature.

3.  A DA Form 4856, dated 18 June 2007, shows the applicant's platoon sergeant counseled him to make him aware that he continued to miss training due to injuries and/or physical profiles.  The platoon sergeant noted that the applicant had missed several training events to include daily physical fitness training throughout all phases of BCT.  He also noted that the applicant had come off profile several times and executed some of the training; however, he seemed to reinjure himself and obtain a new profile shortly after coming off the previous one, which precluded him from participating in makeup training sessions.  He advised the applicant that due to all the training he had missed and his poor physical fitness, it would not be possible for him to complete BCT on schedule.  Therefore, the platoon sergeant was going to recommend to the chain of command that the applicant either be placed in the Physical Training and Rehabilitation Program (PTRP) or that he be restarted to the beginning of the training cycle in order to afford him an opportunity to prepare for the end of cycle APFT and make up the many training events he had missed throughout the cycle.  The applicant indicated his agreement with the observations, recommendations, and decisions rendered during this counseling session and authenticated the counseling form with his signature.

4.  A DA Form 4856, dated 20 June 2007, shows the applicant's platoon sergeant informed him that due to all the training he had missed and his failure to complete any of the diagnostic APFTs to standard, he was recommending that the chain of command restart the applicant at the beginning of the training cycle in order to afford him an opportunity to prepare for the end-of-cycle APFT and make up the many training events he had missed throughout the cycle.  The platoon sergeant also informed the applicant that he could also be separated from the Army for failure to meet the standard after all possible options and/or opportunities had been depleted.  A listing of the applicant's 19 medical visits and appointments during the period 2 May 2007 through 21 June 2007 was attached to this DA Form 4856.  This list shows the applicant walked in to sick call on 13 occasions and kept appointments on six occasions.  The applicant indicated his agreement with the observations, recommendations, and decisions rendered during this counseling session and authenticated the counseling form with his signature.  

5.  A DA Form 4856, dated 30 June 2007, in pertinent part, shows the applicant's platoon sergeant informed him that he had been counseled for his unsatisfactory performance and/or misconduct.  He advised the applicant that if his performance did not improve, he could be subject to separation under the provisions of chapter 5, 11, 13, or 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The platoon sergeant informed the applicant that administrative separation could have a serious effect on his life and provided him some examples of how.  In pertinent part, he told the applicant that if separation was initiated under chapter 11, he would receive an uncharacterized separation.  The platoon sergeant also informed the applicant that an early separation, even with a characterization as honorable, could reduce his chances to obtain either civilian or government employment.  The applicant indicated his agreement with the observations, recommendations, and decisions rendered during this counseling session and authenticated the counseling form with his signature.  The applicant also provided a statement in which he acknowledged that he had missed a lot of training due to his injuries and time in sick call and on quarters.  He also acknowledged his understanding of the fact that he would be restarting BCT and requested that he be transferred to a different training unit so he could get a full restart.

6.  A DA Form 4856, dated 2 July 2007, shows the applicant's company commander informed him that he would recommend to the battalion commander that the applicant be new started due to the fact that he had missed multiple training events during BCT.  The company commander informed the applicant that this was not punishment, but a means to ensure he was proficient in all of his Warrior Tasks and Drills, and prepared to fight and win on any battlefield.  The applicant indicated his agreement with the observations, recommendations, and decisions rendered during this counseling session and authenticated the counseling form with his signature.  

7.  The applicant's new company commander rendered a New Start Feedback Sheet, dated 9 August 2007, in which he opined the applicant was not Soldier material and that in spite of receiving nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and a new start, he had still not learned his lesson.  The applicant's new company commander concluded that he needed a chapter 11 or chapter 14 discharge.

8.  On 20 August 2007, the applicant’s company commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 11, for Entry Level Performance and Conduct.  The commander specifically cited the reasons for this action as the applicant's inability to grasp the Soldierization process and multiple incidents including new start and three Article 15s.  He also informed the applicant that he was recommending the applicant receive an entry level separation with an uncharacterized discharge.  The unit commander informed the applicant that his proposed separation could result in discharge from the Army.  The unit commander also informed the applicant that the least favorable characterization of service that he could receive was general, under honorable conditions.  The unit commander continued by advising the applicant of his rights to consult with legal counsel and to submit written statements in his own behalf.

9.  On 20 August 2007, the applicant acknowledged that he had been afforded an opportunity to consult with counsel, but declined this right to consult and to submit statements in his own behalf.  The applicant also acknowledged his understanding that he would be ineligible to apply for reenlistment in the U.S. Army for a period of two years after discharge and declined receiving a copy of his discharge packet.

10.  On 20 August 2007, the applicant’s company commander recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 11, prior to the expiration of his term of service with the issuance of an entry level separation with an uncharacterized discharge.

11.  On 23 August 2007, the separation authority approved the unit commander's request, directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 11, and directed that he be issued an Uncharacterized Discharge.

12.  Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Orders 236-1307, dated 24 August 2007, show the applicant was reassigned to the U.S. Army transition point for transition processing with a reporting date and discharge date of 29 August 2007.  These orders, in pertinent part, also show the applicant's percentage of authorized disability was "None."

13.  On 29 August 2007, the applicant was discharged accordingly.  Block 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows that he received an "Uncharacterized" characterization of service.  Block 25 (Separation Authority) shows that he was discharged under the provisions of Army Regulation 635-200, chapter 11.  Block 28 (Narrative Reason for Separation) shows "Entry Level Performance and Conduct."

14.  The applicant's record is devoid of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  Additionally, there is no indication in the applicant's records that he underwent a medical evaluation with subsequent referral to a medical evaluation board (MEB) or referral to a physical evaluation board (PEB).

15.  The applicant provides a copy of the aforementioned listing of medical visits and appointments that he made during the period 2 May 2007 through 21 June 2007.

16.  Army Regulation 635-200 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 or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

17.  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 or her office, grade, rank, or rating.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

18.  Chapter 61, Title 10, United States Code (USC) provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The United States Army Physical Disability Agency, under the operational control of the Commander, United States Army Human Resources Command, Alexandria, VA, is responsible for operating the Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40.  Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by an MEB.  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility conducts an MEB to determine whether the Soldier meets the medical retention standards of Army Regulation 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a PEB to determine physical fitness under the policies and procedures of Army Regulation 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to an MEB/PEB is one of the actions the MMRB convening authority may direct; 

	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the medical treatment facility for evaluation.  If evaluation results in an MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of Headquarters Department of the Army action.  The Commander, United States Army Human Resources Command, upon recommendation of the Surgeon General, may refer a Soldier to the responsible medical treatment facility for medical evaluation as described above.  United States Army Human Resources Command also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier to a different MOS.

19.  Army Regulation 635-40, in pertinent part, provides that Soldiers enter the PDES under the presumption they are physically fit.  This is known as the Presumption of Fitness Rule which states a Soldier is presumed fit because of continued performance of military duty up to the point of separation for reasons other than physical disability.  The philosophy behind the rule is that military disability compensation is for career interruption, compensation for service-incurred conditions.  Application of the Presumption of Fitness Rule does not mandate a finding of unfit.  The presumption is overcome if the preponderance of evidence establishes the Soldier, because of disability, was physically unable to perform adequately the duties of his/her office, grade, rank or rating.  This circumstance is aimed at long-term conditions.  It may also be overcome if acute, grave illness or injury, or other deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with, processing for separation or retirement for reasons other than physical disability which rendered the Soldier unfit for further duty.  Future duty is a factor in this circumstance.

20.  Once an MEB determines the Soldier fails medical retention standards, the Soldier is referred to a PEB.  The PEB initially conducts an informal adjudication. 
This is a records review of the MEB and applicable personnel documents without the Soldier present.  The informal decision is forwarded to the Physical Evaluation Board Liaison Officer for counseling of the Soldier.  If after counseling, the Soldier concurs with the findings, the case is forwarded to the United States Army Physical Disability Agency to accomplish disposition.  If the Soldier disagrees with the findings, he/she has the right to submit a rebuttal for reconsideration and the right to elect a formal hearing.  At the time of election for a formal hearing, the Soldier may also elect to appear or not appear, and to be represented by the regularly appointed military counsel or to have counsel of his choice at no expense to the government.  He/she may also request essential witnesses to testify in his/her behalf.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by changing the narrative reason for his uncharacterized discharge to show that he received a medical discharge was carefully considered and determined to lack merit.

2.  Evidence shows the applicant frequently attended sick call, had several medical appointments, was frequently in a "quarters" status, and had numerous temporary physical profiles while attending basic training.  However, the applicant's record is devoid of any evidence and he has not provided any evidence of any specific injury or medical condition that would have rendered him unfit for continued service.  Additionally, there is no indication in the applicant's records that he underwent a medical evaluation with subsequent referral to an MEB or referral to a PEB.

3.  Evidence shows the applicant was counseled on numerous occasions regarding the adverse impact of missing required training and failing to meet minimum physical fitness standards.  The applicant's chain of command made numerous attempts to rehabilitate the applicant, yet he failed to respond.

4.  Evidence shows the applicant was informed in writing that he would receive an entry level separation with an uncharacterized discharge and of the potential difficulties that a discharge of this nature could have on his future employment.

5.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  Furthermore, the applicant has failed to overcome the presumption of fitness.  The presumption is overcome if the applicant can show, through a preponderance of evidence, that because of a disability, he was physically unable to perform adequately the duties of his office, grade, rank or rating prior to his separation from the Army.  

6.  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)                                         AR20090011415





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ABCMR Record of Proceedings (cont)                                         AR20090011415



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