IN THE CASE OF:	  

		BOARD DATE:	    6 December 2011

		DOCKET NUMBER:  AR20110008626 


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 an upgrade of her general discharge (GD) to an honorable discharge (HD) or that the reason and authority for discharge be changed from "unsatisfactory performance" to "medical reasons."

2.  The applicant states:

   a.  a magnetic resonance imaging revealed she had a minuscule tear in her knee prior to discharge;
   
   b.  after she was discharged she was found to have a fractured ankle and back problems; however, these conditions were not taken into consideration when she was discharged for failing the Army's Physical Fitness Test (APFT); and
   
   c.  her physical, mental, and emotional conditions were not properly evaluated during her military service.
   
3.  The applicant provides:

* Self-authored statement
* Department of Veterans Affairs (VA) letters and rating decision
* Numerous medical documents from her VA claim file and service medical record


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 military record shows she enlisted in the Regular Army (RA) on 14 August 2007.  She was trained in and awarded military occupational specialty 68Q (Pharmacy Specialist).

3.  A DA Form 4856 (Developmental Counseling Form), dated 6 August 2009, shows the applicant was administered an event oriented counseling for the month of July.  It shows she was informed:

   a.  She had been in the unit almost 30 days and she was expected to pass the APFT in a few days.

   b.  Despite her current profile, she was encouraged to keep her chin-up and continue working out on her own because the unit’s physical training sessions were not enough for her to reach her personal goal (a copy of the referenced profile is not included in the applicant’s OMPF or supporting medical evidence).

4.  A DA Form 4856, dated 3 September 2009, shows the applicant was administered an event oriented counseling for the month of August.  It shows her noncommissioned officer in charge (NCOIC) informed her:

* she went on leave and missed her scheduled APFT
* she would be administered an APFT in a few days and was expected to pass it
* she no longer had a physical profile and was encouraged to continue to work out on her own in an effort to reach her personal goals


5.  On 14 September 2009, the applicant was administered a record APFT.  The APFT Scorecard shows she was 20 years old, 68 inches tall and weighed 
172 pounds.  The scorecard shows she completed 37 pushups, 59 sit-ups, and the two mile run in 19 minutes and 16 seconds.  She did not complete the run in the maximum time allowed, and as a result failed the APFT.

6.  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 without medical justification would not be allowed and result in separation processing

7.  A DA Form 4856 dated 6 October 2009, shows the applicant’s NCOIC administered her an event oriented counseling for the month of September.  It shows the applicant was:

* encouraged to continue working out hard to ensure she passed the next APFT
* advised it was a mandatory requirement that she pass the APFT to comply with Army policies and regulations or be subject to discharge from the service
* advised another APFT would be administered within 30 days

8.  On 22 October 2009, the applicant was administered a second record APFT.  Her scorecard shows she was age 20, 68 inches tall, and weighed 173 pounds.   She completed 20 pushups, 52 sit-ups, and the two mile run in 20 minute and 
5 seconds.  The applicant did not complete the minimum number of sit-ups or the run in the maximum time allowed and as a result failed the APFT.

9.  A DA Form 4856, dated 26 October 2009, shows the first sergeant (1SG) counseled her regarding her second APFT failure and reiterated his prior counseling informing her that Soldiers without a medical profile who repeatedly failed the APFT would be either barred from reenlistment or processed for separation from the service.


10.  On 30 October 2009, the applicant underwent a mental status evaluation that shows the following:

* her behavior, speech, and thought content were normal
* she was fully alert and oriented
* she had an unremarkable mood and affect
* her thinking process was clear
* her judgment and impulse control were good
* she had no psychiatric disease or defect that warranted disposition through medical channels
* she had the mental capacity to understand and participate in separation proceedings and she was mentally responsible
* she met retention requirements; however, she was not motivated to continue military service

11.  A DA Form 4856, dated 4 November 2009, shows the applicant’s NCOIC counseled her again, reiterated that she needed to pass the APFT, or be subject to the resulting effects from failing this test.  The applicant was informed she would be given another APFT within 30 days.

12.  The applicant’s OMPF contains a DD Form 2808 (Report of Medical Examination), dated 13 November 2009.  It shows she underwent a medical examination for the purpose of separation and was found qualified for service.

13.  A DA Form 3349 (Physical Profile), dated 20 November 2009, shows the applicant was diagnosed with “chronic bilateral knee pain.”  It also shows she was assigned a permanent “L2” profile (lower extremities) based on this diagnosis.

14.  The applicant's record is void of any medical treatment records or other documents that indicate she was treated for a disabling medical or mental condition during her active duty tenure.

15.  On 4 January 2010, the applicant was notified by her unit commander that action was being taken to separate her from the Army under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance.  He cited the applicant’s two APFT failures as the basis for the separation action.


16.  On 14 January 2010, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and of the effect of a waiver of those rights.  Subsequent to this counseling she elected representation by consulting counsel and to submit a statement in her own behalf.

17.  On 14 January 2010, the applicant’s defense counsel submitted a statement on her behalf.  It shows both he and the applicant contend:

   a.  The applicant’s chain of command denied her request for a third APFT after she failed her second APFT.
   
   b.  Army Regulation 350-1 (Army Training and Leader Development) states, in the event of a record APFT failure commanders may allow Soldiers to retake the test as soon as the Soldier and the commander feel the Soldier is ready.  Soldiers without a medical profile will be retested no later than 90 days following the initial APFT failure.

   c.  Subsequent to her two APFT failures, she received a permanent profile due to chronic knee pain and was unable to run; however she was capable of completing a stationary bike or walk event but she was never given an opportunity to complete either event.

	d.  The applicant is now pregnant but continues to perform physical training.  She does not believe she should have been discharged due to unsatisfactory performance because she was not given a sufficient opportunity to improve her physical performance which she believes she can successfully complete although she is pregnant.

18.  On 8 February 2010, the separation authority approved the applicant’s discharge under the provisions of chapter 13, Army Regulation 635-200, and directed the issuance of a GD.  Accordingly, on 24 February 2010, the applicant was discharged.

19.  The applicant's DD Form 214 shows she was separated under the provisions of paragraph 13, Army Regulation 635-200, by reason of unsatisfactory performance.  It also shows that at the time, she had completed a total of
2 years, 6 months, and 24 days of creditable active military service.


20.  The applicant provides a VA rating decision and letter, dated 3 and 10 November 2010, respectfully.  These documents collectively show the applicant was granted a combined disability rating of 70 percent (%) for the following conditions:

Lumbar strain with intervertebral disc syndrome
40%
Left medial meniscus tear
10%
Right knee avulsion fracture with small joint effusion
10%
Right ankle sprain
10%
Tinnitus
10%
Dysthymic disorder (claimed depression, insomnia, severe anxiety and psychiatric problems)
10%
Hypochromia with anemia and dyspnea
0%
Scars, left forearm and thumb
0%
21.  The above documents also show her claim for other conditions were not granted.

22.  The applicant also provides numerous extracts of VA and active duty medical record documents.  These documents detail her medical history and the treatment she received during and after her military service.  None of these documents indicate she suffered from any disabling condition that supported her separation processing through medical channels.

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides 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.  Members separated under these provisions could receive either a GD or an HD.

   b.  Paragraph 13-2e states initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT per Army Regulation 350-1.


24.  Army Regulation 350-1, Section III, paragraph G-9b(2) provides guidance on the APFT.  Paragraph G-9a(13) states physical fitness testing gives Soldiers an incentive to stay in good physical condition and allows commanders a means of assessing the fitness levels of their units.  Accordingly, all active Army and Reserve Component Soldiers must be able to pass the APFT at any time, except upon return from deployment. 

25.  Field Manual 21-20 contains guidance on the APFT.  It establishes the following minimum requirements of female Soldiers in the applicant’s age group:  
19 push-ups, 37 sit-ups, 18:54 minute 2-mile run.

26.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the 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.

	a.  Paragraph 1-5 states that a Soldier who is charged with an offense or is under investigation for an offense for which he/she could be dismissed or given a punitive discharge may not be referred for disability processing.  

	b.  Paragraph 2-2b states that when a member is being separated by reason other than physical disability, the Soldier's continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that the Soldier was unable to perform his/her duties.

	c.  Chapter 3 contains the policy and outlines the standards for determining unfitness 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.  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 his/her grade, rank, or rating. 

	d.  Paragraph 3-3b(1) states, in pertinent part, that for an individual to be found unfit by reason of physical disability, the Soldier must be unable to perform the duties of his/her office, grade, rank or rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her GD should be changed to an HD or the narrative reason for discharge should be changed to reflect “medical reasons” instead of "unsatisfactory performance."  However, the evidence of record confirms she failed two consecutive APFTs.  It also shows she was counseled on her inability to pass the APFT and informed that continued failure would result in early separation from the Army.  

2.  Subsequent to the applicant’s two APFT failures her commander recommended separation processing with the issuance of a GD based on his judgment the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier, as the applicant was authorized to do.  Although the applicant wanted to retest subsequent to these failures, as a Soldier she was required to be able to pass an APFT at all times except upon return from deployment.

3.  In addition, although the applicant was assigned a permanent profile subsequent to her APFT failures there is no evidence that supports her claim she suffered from a condition that rendered her unfit to perform her military duties, or supported separation processing through medical channels.  To the contrary, the DA Form 2808 that evaluated her during her separation processing found her qualified for military service.  As a result, there is insufficient evidence to show she was discharged from active duty for medical reasons. 

4.  The evidence submitted by the applicant confirms the VA assigned her a disability rating for service connected medical conditions, and providing her medical care and benefits based on these medical conditions.  However, a VA decision to provide the applicant a disability rating does not mean this condition was medically unfitting for retention or separation at the time of her separation, or that these conditions supported her processing through medical channels at that time.   

5.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Accordingly, the characterization, reason, and authority for discharge are correct.

6.  In view of the above, the applicant's request should be denied.









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)                                         AR20110008626



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ABCMR Record of Proceedings (cont)                                         AR20110008626



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