MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:  8 September 1999                              
	DOCKET NUMBER:   AR1999017245

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff 		Member	
	Mr. Orville W. Troesch, Jr.		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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, physical disability retirement or separation.

He injured his back during training and failed the physical training test because he could not do sit ups because of the pain in his back.  He was discharged because he failed the physical training test; however, it was the back injury which caused his failure.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army for three years on 24 April 1992, completed training, and in August was assigned to Fort Ord, California.

On 29 October 1992 he was counseled for failing the Army physical fitness test.  His physical fitness test scorecard shows that he failed the sit up and the run portions of that test.

On 20 January 1993 he again failed the physical fitness test.  His scorecard shows that he failed the sit up portion of that test.  He was counseled because of his failure on 18 February 1993. 

A 26 January 1993 report of mental status evaluation shows that the applicant was mentally responsible, had the mental capacity to understand and participate in board proceedings, and met the medical standards for retention in the Army.  He was psychiatrically cleared for any administrative action deemed appropriate.  
A 27 January 1993 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that he furnished for the examination, the applicant stated that he had low back pain, off and on, since basic training.

In March 1993 the applicant’s commanding officer notified the applicant that he was initiating action to separate him from active duty under the provisions of Army Regulation 635-200, paragraph 13-2, for unsatisfactory performance, because of his two consecutive physical fitness test failures.  He informed the applicant that he was recommending that he receive an honorable discharge.

The applicant consulted with counsel and stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He declined to submit a statement in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated for unsatisfactory performance.  The separation authority approved the recommendation and directed that the applicant receive an honorable characterization of service, and that he be transferred to the individual ready Reserve.

The applicant was released from active duty on 14 April 1993 and transferred to the Army Reserve Control Group (Annual Training).  He had 11 months and       24 days of service. 

An order published by the Army Reserve Personnel Center on 8 October 1996 released the applicant from the aforementioned control group effective              30 September 1996, as a result of his enlistment in the Illinois Army National Guard.

On 4 February 1998 the VA awarded the applicant a 10 percent service connected disability rating for low back condition because of arthritis with slightly limited motion of the lumbar spine.  The VA indicated that his disability did not present such an exception or unusual disability picture as to render impractical the application of the regular schedular standards.  There was not, in addition to limitation of motion, increased disability due to weakened movement, excess fatiguability, incoordination, or painful motion on use of the back such as to warrant an increased evaluation in terms of the criteria for measurable limitation of motion.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 establishes policy and prescribes procedures for separating members for unsatisfactory performance.  That chapter states, in part, that commanders will separate a soldier for unsatisfactory performance, when it is clearly established that in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.  The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

Title 10, United States 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.

Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 14 April 1993, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 14 April 1996.

The application is dated 24 June 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___fkm__  ___klw __  ___owt__  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999017245	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
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.  142.00		
2.   108.00		
3.		
4.		
5.		
6.