MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 December 1999                   
	DOCKET NUMBER:   AR1999024792

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Elzey J. Arledge, 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 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 her separation be changed to a medical separation.

APPLICANT STATES:  That she received a 30 percent disability for sinusitis and she is currently being re-evaluated for abdominal pains, which she began experiencing in January 1993, 4 months after the cesarean birth of her daughter. Her performance was not unsatisfactory and a discharge for unsatisfactory performance was unjust after six years of outstanding performance.  She provides copies of her medical records pertaining to her abdominal surgery as supporting evidence.

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

After having had prior service in the U. S. Army Reserve where she was awarded military occupational specialty 75D (Personnel Records Specialist), she enlisted in the Regular Army on 28 February 1989. 

In May and August 1994, the applicant failed the Army Physical Fitness Test (APFT).  In August 1994, a bar to reenlistment on the applicant was approved due to her APFT failures.

On 6 March 1995, the applicant underwent surgery to remove uterine adhesions. She was placed on 30 days physical profile afterwards and then given 30 days to take another APFT.  She failed that third APFT in May 1995.

On 15 May 1995, the applicant’s commander initiated action to separate her under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance by failing to obtain a passing score on three consecutive record APFTs.  

The applicant conditionally waived consideration of her case by an administrative separation board (contingent upon her receiving an honorable discharge) and submitted a statement in her own behalf.  

On 12 June 1995, the appropriate authority approved the recommendation and directed the soldier be issued an honorable discharge.

On 29 June 1995, the applicant was discharged, in pay grade E-4, under the provisions of Army Regulation 635-200, Chapter 13, unsatisfactory performance, with an honorable discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  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.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 3-2 of that regulation states that, when a soldier 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.

Title 38, U. S. 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.

The applicant applied to the Army Discharge Review Board (ADRB) for a change of her narrative reason for separation and a change to her separation code.  In her application she stated “I know that my tenure with the United States Army was exemplary, diligent, and proficient particularly within my job duties.”  On     29 October 1999, the ADRB changed the applicant’s reason for discharge to Secretarial Authority and her separation code from LHJ (unsatisfactory performance) to JFF (secretarial authority).

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.  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.
2.  Physical disability processing is prescribed for soldiers who may be unfit to perform their military duties (not just unable to pass an APFT) because of physical disability.  Continued performance of assigned duty commensurate with the soldier’s rank or grade until the soldier is scheduled for separation creates a presumption that the soldier is fit.  In this case, the presumption of fitness could be overcome if the evidence established that the applicant was, in fact, physically unable to adequately perform her military duties for a period of time because of disability.  However, the applicant herself has stated that her service was exemplary, diligent, and proficient particularly within her job duties.  The Board concludes that the presumption of fitness has not been overcome in her case.

3.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its separation action accordingly.

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

__mkp___  __aao___  __eja___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024792	
SUFFIX		
RECON		
DATE BOARDED	19991201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.