MEMORANDUM OF CONSIDERATION

	IN THE CASE OF 

	BOARD DATE:            21 April 1999                  
	DOCKET NUMBER:   AR1999014923

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, disability separation or retirement.

APPLICANT STATES:  In effect, that her medical conditions prevented her from meeting the physical standards of the military and that the statement “unsatisfactory performance” is preventing her from obtaining gainful employment because employers suspect she was a “marginal or unsat performer.”  In support of her request she submits extracts from her service medical records.

EVIDENCE OF RECORD:  Attempts to secure copies of the applicant’s military personnel file were not successful and as such the information contained herein was reconstructed from alternative sources, including documents provided by the applicant.

The applicant entered active duty on 8 October 1996 at the age of 23.  Prior to her entry on active duty, in January 1996, she underwent a “colonoscopy plus biopsy.”  The final “impression” following the procedure was that she suffered from “minor hemorrhoids” and “some thickening of folds in the left colon, probably of no clinical significance.”  Her entrance physical examination noted she was fully qualified for enlistment with a physical profile of 1-1-1-1-1-1.

She successfully completed basic training and in March 1997 was advanced to pay grade E-2.  In July 1997 she completed a 25-week basic Spanish language course at the Defense Language Institute in California.

Her service medical records indicate she was seen on several occasions by medical personnel beginning in March 1997 for a variety of complaints, including cold and flu like symptoms, headaches, abdominal pain, and hip pain.  In September 1997 she was issued a temporary physical profile for “right hip bursitis” which prevented her from doing sit-ups and “flutterkicks” but enabled her to participate in most other military functions, including running at her own pace, carrying and firing her weapon, and lifting up to 80 pounds.  The profile was extended an additional 30 days in October 1997.

In September 1997 the applicant was “psychiatrically cleared for administrative discharge” and on 10 October 1997 she was found medically qualified for separation with a physical profile of 1-1-T2-1-1-1.  The “T-2” represented the temporary profile associated with her bursitis.

On 10 November 1997 the applicant was honorably discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  Item 28 (narrative reason for separation) on her DD Form 214 reflects “unsatisfactory performance” and item 25 (separation authority) reflects “AR 635-200, Chap 13.”  Documents associated with her administrative separation were not available to the Board.  At the time of her separation she had completed 1 year, 1 month and 3 days of active Federal service.
Army Regulation 635-200 establishes the policies and procedures for the administrative separation of enlisted soldiers.  Chapter 13 states that a soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders may separate soldiers for unsatisfactory performance when it is clearly established that the soldier will not develop sufficiently to participate satisfactorily in further training and or become a satisfactory soldier, or the seriousness of the circumstances is such that the soldier’s retention would have an adverse impact on military discipline, good order, and morale, and it is likely that the soldier will be a disruptive influence in present or future duties assignments, and it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur, and the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  The service of soldier’s separated because of unsatisfactory performance will be characterized as honorable or general as warranted by their military records.

Army Regulation 635-5 establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item number 25 of the DD Form 214.  Item number 28 will contain the narrative reason for separation, as shown in Army Regulation 635-5-1 based on the regulatory authority.

Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  It indicates that "unsatisfactory performance” is the appropriate narrative reason for discharge when the authority is "AR 635-200, Chap 13."

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant 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 and which rendered the soldier unfit for further duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Although the applicant may have had a temporary profile and several medical complaints, her continued performance of duty until her administrative separation raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with her separation.

2.  Although documents associated with the applicant’s administrative separation were not available to the Board the evidence of record indicates she did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____cmf_  ____sk__  ___gfg__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014923	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990421	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	( DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.