IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015723 


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 upgrade of her general discharge to an honorable discharge.

2.  The applicant states that she believes her discharge to be unjust because she tried to get her back looked at while she was in service because she was unable to complete an Army Physical Fitness Test (APFT) due to an injury that occurred on a previous test.  She further states her supervisors recommended she receive an honorable discharge because she was an above average Soldier and the Judge Advocate General’s (JAG) office also indicated that she did not deserve a general discharge; however, her commander would not give her an honorable discharge.  She continues by stating that she is receiving disability compensation for her back injury from the Department of Veterans Affairs (VA).

3.  The applicant provides:

* A letter explaining her application
* A copy of her VA benefits increase
* A copy of a letter of appreciation
* A copy of a correspondence course completion
* Copies of documents from her medical records related to treatment of her back 




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 initially enlisted in the U.S. Army Reserve (USAR) and entered active duty for training (ADT) on 12 November 1991.  She completed her training as a medical specialist at Fort Sam Houston, TX and on 24 April 1992 she was released from ADT and she was transferred back to her USAR unit in Hartford, CT.

3.  On 30 October 1992 the applicant enlisted in the Regular Army for a period of 3 years and assignment to Fort Hood, TX.  She was assigned to a medical company of a forward support battalion as a medical specialist.  On
18 December 1992 she went on sick call complaining of lower back pain (LBP) that occurred during an APFT.  She was advanced to the pay grade of E-3 on
1 August 1993.  On 12 December 1993 she was given instructions by a physician to do no heavy lifting, no running, and no sit-ups until 20 December 1993.

4.  In January 1994 she was seen at the troop medical clinic (TMC) to follow-up on her complaint and the physician’s assistant indicated that the applicant stated she was feeling better, that the therapy was working well to resolve the LBP, and that she should continue as instructed.

5.  On 14 February 1994 she was seen by a physical therapist who placed her on profile, prescribed treatment, and directed her to continue physical therapy.

6.  The applicant failed the 2-mile run portion of her record APFT in April 1994.  She was counseled by her first sergeant and informed that she would be enrolled in a special physical training program and she had 90 days in which to pass the APFT.  On 15 July 1994 she again failed the 2-mile run portion of her record APFT.

7.  On 4 August 1994 the applicant’s commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance due to two consecutive APFT failures.  He also advised her that she was required to undergo a complete medical examination and mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He further advised the applicant that he was recommending her discharge with a general discharge; however, the intermediate commander and the separation authority were not bound by his recommendation.  She acknowledged notification of the discharge action and stated that she would submit a statement in her own behalf.

8.  The applicant submitted a statement in which she requested that her record of service be viewed as fully honorable because of her accomplishments instead of under honorable conditions.  She further stated that she accepted full responsibility for her two APFT failures and provided medical documents to show her medical history of back problems.  She also submitted statements from four sergeants and a lieutenant who all contended that she deserved an honorable discharge.

9.  The applicant’s separation packet underwent a review by the Chief, Administrative Law, 1st Cavalry Division who indicated that while it was legally sufficient, the commander (separation authority) should consider the characterization of the applicant's service in light of her duty performance.

10.  On 29 August 1994 the separation authority (battalion commander) approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

11.  Accordingly, on 21 September 1994, she was discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance with a general discharge.  She served 1 year, 10 months, and
22 days of active service during her Regular Army enlistment.

12.  There is no evidence in the available records to show that she applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitations.

13.  A review of the available records failed to reveal a copy of the applicant’s separation physical/medical examination.  There is also no indication in the available records to show that competent medical authorities determined she was unfit for retention or separation or that her APFT failures was the result of her medical condition.
14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 states in pertinent part that initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test, unless the responsible commander chooses to impose a bar to reenlistment per Army Regulation 601-280 (Total Army Retention Program).  The regulation requires that separation action 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.  Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions.

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; however, they are not sufficiently mitigating to warrant relief when considering that the applicant was a medical specialist who worked in a TMC and should have been reasonably aware that a determination by competent medical personnel was required if she was in fact unable to perform her duties as a Soldier due to a medical condition.  Additionally, if she was unfit for retention or separation due to a medical condition, processing through the Physical Disability Evaluation System (PDES) was required.

4.  The applicant has failed to show through the evidence of record and the evidence submitted with her application that her APFT failures were the result of her medical condition and that the commander was not within his authority to recommend that she receive a general discharge, or that the separation authority did not consider all of the recommendations for her to receive an honorable discharge before he exercised his discretion and directed a general discharge.

5.  Lacking evidence to show that a medical determination was made at the time to show that her medical condition prevented her from passing her APFT, it would be inappropriate to second-guess the commanders on the ground at the time who determined that her service warranted a general discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100015723



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ABCMR Record of Proceedings (cont)                                         AR20100015723



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