MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 June 1999
	DOCKET NUMBER:   AR1999024048

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Thomas B. Redfern, III		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:  That his narrative reason for separation of unsatisfactory performance be changed to a medical discharge, that his Reentry (RE) Code of NA be changed to a more favorable code and that he be compensated for back pay for the period 6 August 1993 to 1 March 1995.

APPLICANT STATES:  In effect, that his narrative reason for separation and RE code is incorrect on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also states that he injured his back while lifting a box from a delivery truck in July 1991.  On 29 July 1991, he was evaluated by competent medical authorities at Seymour Johnson Air Force Base, in Goldsboro, North Carolina.  After being evaluated he was issued a profile, which stated no lifting over 10 pounds, no repetitive bending, and no squatting or stretching.  He further states that he received several profiles during the period of July 1991 to January 1993.  While on profile he was administered an Army Physical Readiness Test (APRT), in which he failed.  He goes on to state that he was involuntary released from active duty without separation pay which has caused a hardship for his family and that he is requesting compensation for the period of 6 August 1993 to 1 March 1995.  He concludes by stating that he was later evaluated by the Veterans Administration (VA) and was informed that he had limited motion in his lumber spine between the L 4/5 disk bulge.  

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

The applicant initially enlisted in the Alabama Army National Guard (ALARNG) on 23 November 1973 as a supply specialist.  He was ordered to initial active duty for training (IADT) on 25 January 1974 and was released from IADT on 5 July 1974 and returned to the control of the ALARNG.  He continued to serve in the ALARNG until he was released on 6 April 1977.

On 7 April 1977, the applicant enlisted in the Regular Army.  He continued to serve until he was honorably discharged for reenlistment on 16 April 1978.  He reenlisted on 17 April 1978 and continued to serve until he was honorably released on 16 March 1984 and was transferred to a troop program unit (TPU) in the U.S. Army Reserve (USAR).

On 15 August 1985, the applicant enlisted in the North Carolina Army National Guard (NCARNG) where he continued to serve.

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows that on 5 August 1993, he was honorably released from the NCARNG under the provisions of National Guard Regulation 600-5, chapter 6, for unsatisfactory performance.  

On 3 December 1993, the Army Reserve Personnel Center (ARPERCEN) notified the applicant (20 year letter) that he had completed the required years of service to be eligible for retired pay upon application at age 60 (29 January 2015).

On 22 February 1994, the applicant was assigned to the USAR Control Group (Retired Reserve) effective 5 February 1994.

The applicant’s medical records are not present for review by the Board.  However, documents submitted by the applicant show that he injured his back and was experiencing lower back pain.  He was later evaluated by competent medical authorities, based on a radiology report, which diagnosed the applicant as having mild bulging of the L4/5 disc.  Stacked images showed no additional abnormalities.  No significant facet arthritis is seen on the bone window.  The applicant was issued a temporary profile on 29 July 1991 for his lower back pain.  He received several profiles from 29 July 1991 to 12  July 1993 with limited restrictions.  On 13 July 1993, the applicant was issued a permanent profile of 113111 and returned to duty with restriction of no pushups and sit-ups during APRT.

National Guard Regulation 600-5 sets forth the basic authority for the Active Guard/Reserve (AGR) Program.  Chapter 6 governs the separation of soldiers serving on Full-Time National Guard Duty (FTNGD) in the AGR Program.  It states in pertinent part, that reasons for involuntary separation include inappropriate professional and personal conduct, moral or professional dereliction, loss of professional qualifications required for substandard duty performance, prejudicial actions and failure to be medically and physically qualified.  The adjutants general (AG) will review all recommendations for separation under this paragraph and will make the final determination.  Individuals separated are entitled to legal counseling.

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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  The Army National Guard only uses this provision of Army Regulation 601-210 for information purposes.  Therefore, the Army National Guard is not required to show an RE code. 

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, paragraph 2-2b, as amended, provides that when a 
member is being separated by reason other than physical disability; his continued performance of duty creates a presumption of fitness, which can be 
overcome only by clear and convincing evidence that he was unable to perform his 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.

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.

2.  The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.

3.  At the time of his separation, the applicant was assigned a reentry code of NA in accordance with regulations then in effect.  The applicant has failed to show through the evidence submitted with his application or evidence of record,
that the RE code of NA issued to him was incorrect.

4.  The applicant did not have any medically unfitting disability, which required physical disability processing at the time of his separation.

5.  The Board noted the applicant’s contentions that he injured his back while lifting a box from a delivery truck and was later evaluated and issued several profiles for his lower back pain.  However, he continued to perform his duty despite an impairment, which is presumptive evidence of physical fitness.

6.  Prior to the applicant’s discharge, he was issued a permanent profile on 
13 July 1993.  At that time competent medical authorities determined that the applicant was then medically fit and indicated that the applicant return to duty with restrictions.  Accordingly the applicant was separated from active duty for reasons other than physical disability.

7.  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.  

8.  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

RVO____  KAN_____  TBR____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024048	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990603	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19930805	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 191		
2.		
3.		
4.		
5.		
6.