IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110015303 


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 his reason for separation be changed from unsatisfactory performance to medical.

2.  He states his reason for separation should have stated medical since his DA Form 2173 (Statement of Medical Examination and Duty Status) states he was injured during active duty.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2173, and Department of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 16 November 2009.  He did not complete training and was not awarded a military occupational specialty.

2.  His records maintained in the interactive Personnel Electronic Records Management System contain his separation documents.  Charlie Company, 832d Ordnance Battalion Memorandum for the applicant, subject:  Separation Under Army Regulation 635-200, Chapter 13, Separation for Unsatisfactory Performance, Applicant's Name, dated 24 August 2010, stated he was having separation action initiated against him for unsatisfactory performance under the provisions of Army Regulation 635-200, Chapter 13.  The reasons given for the proposed action were that he failed two consecutive Army Physical Fitness Tests (APFT) within a period of 90 days and had no medical limitations that prohibited him from taking the APFT.

3.  His records contain DA Forms 705 (APFT Scorecard) showing he repeatedly failed the APFT including the end of course APFT on 6 April 2010.  His records further show he was counseled on numerous occasions regarding his APFT failures.

4.  On 24 August 2010, the applicant acknowledged receipt of the notice from his commander that informed him of the basis for the contemplated action to separate him under Army Regulation 635-200, Chapter 13, and of the rights available to him.  He had been advised of his right to consult with counsel prior to submitting his Election of Rights.  He understood that unless an extension was granted, failure to respond within 7 duty days would constitute a waiver of the rights in paragraphs 5, 6, 7 and 8 of the notice.

5.  On 26 August 2010, he acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him for unsatisfactory performance under Army Regulation 635-200, Chapter 13 and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights.  He chose not to submit a statement in his own behalf. 

6.  A DA Form 2173, dated 31 August 2010, shows on 18 May 2010 the applicant incurred a right knee sprain which was determined to be a temporary disability.  The form stated he was running during a physical fitness test when he fell and hurt his right knee.

7.  His record is void of any additional medical documents from his active duty service.  He provided a copy of his VA rating decision, dated 24 January 2011.  This document shows he was assigned a 10 percent disability rating for healing or healed fracture fragments of the proximal right tibia with a right knee sprain effective 3 September 2010. 

8.  His record contains a DD Form 214 for the period ending 2 September 2010 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, with an honorable discharge.  His DD Form 214 shows he completed 9 months and 17 days of active service.

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  It 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.  It states 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 his or her office, grade, rank, or rating.

11.  Army Regulation 635-40 further provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military occupational specialty with the medically-disqualifying condition.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  His records show he was counseled on numerous occasions for failing the APFT.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 13, for unsatisfactory performance.  The reason given for separation was that he failed two consecutive APFTs within a period of 90 days including the end of course APFT on 6 April 2010, which was before his 18 May 2010 injury.  

2.  A DA Form 2173 he provided showed he sprained his right knee when he fell while running, which was determined to be a temporary disability.   However, a separation-related document stated he had no medical limitation that prohibited him from taking the APFT.  

3.  The ABCMR starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Absent evidence to the contrary, it is concluded the Army found no evidence he had an unfitting diagnosis that would have required an MEB.  It is presumed that competent medical personnel determined he was fit for duty at the time since he was discharged under the provisions of Army Regulation 635-200, chapter 13.  As such, the applicant has not provided sufficiently convincing evidence or argument to form a basis to change his properly assigned reason for separation of unsatisfactory performance to medical.

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)                                         AR20110015303





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ABCMR Record of Proceedings (cont)                                         AR20110015303



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