MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 May 1999       
	DOCKET NUMBER:   AC97-11399
				   AR1999021230

	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. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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 retirement or that he be allowed to return to active duty.

APPLICANT STATES:  That he failed two physical fitness tests in 1994 as a result of exercise induced “bronchial spasm.”  He notes that since that time he has been on medication and passed subsequent fitness tests.

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

He entered active duty on 11 January 1983 and served on continuous active duty until 28 February 1997 when he was involuntarily discharged as a result of a DA imposed bar to reenlistment under the Army’s Qualitative Management Program (QMP).  Documents associated with the QMP action were not available to the Board.

A 1992 physical examination, however, noted the applicant suffered from asthma but the evaluating physician found him qualified for “retention/promotion.”

At the time the applicant was involuntarily released from active duty he was serving in pay grade E-7.  He received more than $18,000.00 in separation pay.  Item 27 (reentry code) on his DD Form 214 reflects and RE Code of 4.

Subsequent to his separation from active duty the applicant enlisted in the Montana Army National Guard.  His National Guard records indicate he was issued a temporary physical profile in July 1998 as a result of exercise induced asthma.  Another statement in that file, however, notes the applicant’s “condition does not preclude him from performing his normal duties as a 31U Radio Maintainer Section Sergeant.”  A 1998 periodic physical examination noted his asthma was controlled and that he was qualified for retention.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, the DA promotion selection boards regularly screen records for grades E-5 through E-9.  The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210, then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes, including RA RE codes.  RE 4 applies to individuals separated from their last period of service with a nonwaivable disqualification, including those soldiers separated with a DA imposed bar to reenlistment in effect.

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.

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.  The evidence confirms the applicant was involuntarily released from active duty as a result of DA imposed bar to reenlistment under the Army’s Qualitative Management Program and not as a result of any medical condition.  In the absence of evidence to the contrary the Board presumes regularity in his QMP action.

2.  While he may have failed two physical fitness tests in 1994, and those failure may have contributed to his QMP action, his continued performance of duty until in involuntary separation in 1997 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

3.  There is no evidence, and the applicant has not provided any, which confirms he had any medically unfitting disability, which required physical disability processing at the time of his release from active duty.  Therefore, there is no basis for physical disability retirement or separation.  

4.  Documents contained his National Guard file indicate his asthma is controlled and that it has not impacted on his ability to perform his military duties. The reason he is unable to return to active duty is because his reenlistment eligibility code (RE-4) prohibits his reenlistment.

5.  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.

6.  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

___jns__  __rgh___  ___rwa__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-11399/AR1999021230	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
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.