MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            6 May 1999        
	DOCKET NUMBER:   AR1999023027

	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 Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Carol Jo Suiter		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, that his reason for separation be changed in order to receive benefits under the GI Bill.   

APPLICANT STATES:  That the reason he was separated for unsatisfactory performance was because he could not pass the physical fitness test due to problems with his right knee.  He would not have been discharged had it not been for his knee problems which hindered his physical performance.   

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

He enlisted in the Army for four years on 1 May 1992, and was assigned to Fort Leonard Wood, Missouri for basic training.  Medical records of 3 June and          16 June 1992 show that he complained of knee pain, and that it hurt mainly when running.  In July 1992 he was transferred to Fort Sam Houston, Texas, for training as a medical specialist, completed that training and was transferred to the Washington, D.C. area in October 1992, eventually being assigned to the Walter Reed Army Medical Center in December, with duty at the Rader Clinic at Fort Myer, Virginia.

The applicant’s Army Physical Fitness Test Scorecards show that he passed the physical fitness test in July 1992, December 1992, and April 1993; failed the test (run portion) on 8 November 1993 because of injury to his knee; failed the test on 4 March 1994 (push up portion), having taken the 2.5 mile walk, an alternate event instead of the 2 mile run; and failed the test on 18 October 1994 (run portion).

On 8 November 1993 the applicant complained of knee pain and was treated at the Rader Clinic.  He was treated again on 12 December 1993 and again on       17 December.  The medical report for this last treatment shows that he had a right knee injury in high school and recently twisted it again.  He experienced occasional locking and “it goes out”.

The applicant was again treated at the orthopedic clinic on 22 December 1993, and again in February 1994.  He reinjured his knee in December 1993, twisting it. There was no swelling, but [experienced] knee “locking” and extreme pain (when knee locked it was in a bent position), which occurred in December and also when he attempted to run during the PT test.  Pain was minimal on daily basis as long as he avoided stressing it.  He had no problems at work, but had a profile with no running.  The diagnosis was a probable tear based on history for mechanism of injury as well as intermittent locking of knee in flexion that required manual reduction.

On 11 April 1994 the applicant was counseled because he failed the                    4 March 1994 test, and was enrolled in the Army special fitness program.  He was informed by his commanding officer, among other things, that he would have 30 days to prepare for a retest, that he had no more than 90 days from the date of his failure to retest, that if he had a profile he would be given time to recover, but no more than 90 days, and that if he failed two consecutive tests, he would be separated from the Army.

The applicant was treated again in June of 1994 for his right knee problem.  He had a normal MRI.  His knee still continued to lock and cause pain intermittently. 

On 15 June 1994 he was counseled for being absent for mandatory physical fitness training, specifically on 18 May, 6 June, and 7 June.  He was also advised about the importance of passing the next test, and that personnel in the chain of command were available to help him.  The applicant stated that he had not been running because he did not want to injure his knee prior to the physical training test, that he had been running on his own, and would begin strengthening exercises for his knee.  He did not want to fail the test because he wanted to stay in the Army.  He was informed to take the necessary measures to become medically cleared for running (sick call, evaluation by a physician), and was again told that he would be present for all physical training formations, and that an NCO would be instructed to assist him in passing the test. 

On 24 October 1994 the applicant was counseled for failing the aforementioned two physical fitness tests. 

A 25 October 1994 report of mental status evaluation indicates 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.

In a 27 October 1994 report of medical examination, the examining physician stated that the applicant had, among other ailments, recurrent bursitis to his right knee.  He stated that the applicant’s right knee tended to lock.  The applicant was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history that the applicant furnished for the examination, he stated that his current health was good, but that he did have recurring right knee pain and locking.

On 7 December 1994 the applicant’s commanding officer informed the applicant that he was initiating action to separate him for unsatisfactory performance because of his failure to pass the physical fitness tests.  He informed the applicant that he had been placed on remedial physical training on                      4 March 1994, and failed the test for the second time on 18 October 1994.  

The applicant consulted with counsel, and stated that he had been advised of the basis for the contemplated action, its effects, and the rights available to him.  He submitted a statement to the effect that he had worked hard during the past two years, working in the emergency room for the first 22 months of his tour, working shift work 7 days a week, 365 days a year, with a large daily patient work load, which at times would be extremely trying.  He had to adapt to and deal with the stresses of a clinic and get the job done, which he always did.  He has been recognized by his peers and his superiors for doing an outstanding job, had received numerous awards, and had received recognition from the Sergeant Major of the Army. He had achieved a lot and helped out greatly, and when his records were reviewed you would see more than just “PT test failure”.  

The applicant submitted nine supporting statements, from doctors and nurses, one from an NCO, and one from a fellow soldier.  In essence, those individuals stated that the applicant was a highly qualified medical technician, astute, adaptable, and well organized.  He was totally reliable and an outstanding clinician with unlimited potential.  He was an excellent performer with a can do attitude, with strong work ethics who performed well under pressure.  Additionally, he had superior human interaction skills, who placed patients first, and showed compassionate and emphatic concern for patients.  He had a professional military attitude and appearance, was dedicated, sincere, and committed.  He was recognized by his peers and superiors alike, and received recognition from the Sergeant Major of the Army in one instance. 

The applicant’s commanding officer recommended to the separation authority that the applicant be released from the Army and that he receive an honorable discharge.  On 3 January 1995 the Staff Judge Advocate of the Walter Reed Army Medical Center reviewed the separation action and deemed it to be legally sufficient.  

On 4 January 1995 the separation authority approved the recommendation and directed that the applicant receive an honorable discharge.  The applicant was released from active duty on 24 January 1995 and transferred to the Army Reserve Control Group (Annual Training) at St. Louis.  He had 2 years,                8 months, and 24 days of service.

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.  Paragraph 13-2f states that initiation of separation proceedings is required for soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test according to Army Regulation 350-41.  The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

The MGIB, as outlined in Title 38, United States Code, chapter 30, section l411(b), provides for soldiers who entered the service after 30 June l985, to be automatically enrolled into the MGIB and to contribute $l,200.00 during their first l2 months service, which is nonrefundable.  After completion of their service obligation, he or she is entitled to receive up to $300.00 per month educational benefits for 36 months.  The program is administered by the Department of Veterans Affairs (VA).  VA regulations specify that if a soldier is separated prior to the normal expiration of his or her term of service, the separation must be for hardship, medical disability or for the convenience of the government.  Also, he or she must have served in excess of 20 months for an enlistment of less than 3 years, and in excess of 30 months for an enlistment of 3 years or more.  In all cases, the soldier’s service must be considered fully honorable.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The applicant’s separation for unsatisfactory performance was appropriate considering all the facts of the case.

2.  The Board has taken cognizance of the applicant’s military record and performance as indicated by the supporting documents provided by his peers and superiors during the separation proceedings.  The Board also recognizes that the applicant did have problems with his knee during his military service.  However, none of these factors, either individually or in sum, warrant the relief requested.  The applicant failed the physical training test in March of 1994, not because he failed the run portion of that test because of a problem with his knee, but because he failed the push up portion.  During that test, he successfully completed the 2.5 mile walk, the alternate event to the 2 mile run portion of the physical training test.  The applicant was counseled by his commanding officer, enrolled in a special fitness program, again counseled and provided help so that he could pass the physical training test.  He failed to do so, and there is no evidence, nor has the applicant provided any, to show that he was physically unfit to take that test.  The Board notes that competent medical authorities determined nine days after he failed the physical training test, that he was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   
4.  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.

5.  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

__fne___  __ewl___  ___cjs__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023027	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990506	
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. 110.00		
2.		
3.		
4.		
5.		
6.