MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  16 March 2000
	DOCKET NUMBER:   AR1999028457

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Orville W. Troesch		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 military records be corrected by removing his bar to reenlistment for failing to pass the Army Physical Fitness Test (APFT) or by either granting medical retirement or paying him full separation pay.

APPLICANT STATES:  In effect, that subsequent to his APFT failure in November 1994, he was on a series of medical profiles from January 1995 until his forced separation from the Army due to the expiration of his term of service (ETS) in January 1997 and was counseled only once to justify an APFT failure entry on his change of rater non-commissioned officer evaluation report (NCOER).  He states that despite being identified by his battalion as a non-deployable soldier, he continued to participate with his unit in field training exercises.  He also states that during the period from December 1995 to October 1996, he endured instability and uncertainty in the progress of his medical attention because he was assigned two different critical medical care doctors and was without a critical medical care doctor for a 5-month period.  He further states that even though the entry on his last NCOER said that he was still able to do his job despite his profile, he believes that once it became evident that his medical condition was the reason for his inability to meet the APFT standards, the bar should have been lifted so that he could be evaluated for medical retirement or early retirement with full separation pay under the early retirement provisions for his particular military occupation specialty that was in effect at the time, neither of which he was allowed to do.

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

His military medical records and his unit training records including APFT records were not available to the Board.  Other available records indicated that he initially enlisted in the Regular Army under the delayed entry program and entered active duty on 15 July 1980 for a period of 3 years.  He completed his initial training in the signal career management field (CMF) at Fort Gordon, Georgia.  Other signal CMF assignments included Fort Bragg, North Carolina, Germany and Fort Hood, Texas.  He was promoted to his highest achieved enlisted rank of sergeant first class (SFC) on 1 April 1990.

An NCOER for the rating period from March through December 1994 indicated, in pertinent part, under item c, part IV, physical fitness and military bearing, that he needed some improvement.  The rater comments here indicated that he failed an APFT in October 1994; that he was unable to meet the 2-mile run standard; that he had a total APFT score of 153; that he was enrolled in remedial physical training; and that his progress was undetermined due to a pending medical evaluation.  

There was nothing contained in his available records to show why he was unable to complete the 2-mile run or if a medical profile was in effect at the time of the APFT in October 1994.  Additionally, there was nothing to indicate the specific nature of the 

medical evaluation or outcome.  Also, there was nothing in his available records to indicate a suspension of favorable personnel actions or a bar to reenlistment. 

An NCOER for the rating period from January through May 1996 indicated, in pertinent part, under item c, part IV, physical fitness and military bearing, that he met the standards for success.  The rater comments here indicated that as of January 1996, he was under a profile; and that the profile did not hinder his duty performance.

On 10 January 1997, his ETS was extended to 21 January 1997.  His DD Form 214, separation document, shows that he was separated in the rank of SFC for completion of required active service under the provisions of Army Regulation 635-200, Chapter 4, on 21 January 1997.  He had completed 16 years, 6 months and 7 days of total continuous active federal service and reentry (RE) code 3 was applied.  He had four other reenlistments occurring on 7 June 1984, 10 March 1987, 14 May 1991, and 14 January 1993.  Upon separation, he received $22,147.19 in half involuntary separation pay.

RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received non-judicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

Public Law 101-510, and Title 10 U.S.C 1174 sets forth the authority for payment of separation pay to Regular Army and Reserve Component personnel and states, in pertinent part, that individuals who completed at least 6 years but fewer than 20 years service are entitled to full separation pay except for those individuals who were denied retention as a result of a DA QMP (Qualitative Management Program) or local bar to reenlistment and who do not voluntarily separate under the provisions of Army Regulation 635-200, Chapter 16-5.  These individuals are entitled to half separation pay providing their service is characterized as honorable or under honorable conditions (general discharge).

There was nothing contained in his available records to indicate that he had a medical condition requiring separation processing through medical channels.

The Early Retirement Program (ERP) is one of several voluntary separation programs for officer and enlisted personnel that provides an incentive for voluntary retirement in lieu of any involuntary separation.  The ERP, established by Congress to meet mandated fiscal year end-strength manpower objectives, states, in effect and in pertinent part, that enlisted personnel in selected military occupational specialties and grades who otherwise meet the eligibility criteria for a 20-year length of service retirement as established by Title 10, USC, AR 635-200, Chapter 12, and modified by 

applicable implementing instructions in effect at the time of application, may apply for early retirement.  Favorable consideration for early retirement, based on grade and MOS overages, is normally determined by time-in-grade and time-in-service seniority.

There was nothing in his records to indicate that he requested early retirement under ERP and that such a request was denied.  NOTE:  The Board noted that at the time of his separation, there was no ERP in effect for his rank, SFC, and MOS, 31W.

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 Board is unable to determine the existence of error or injustice since there is no evidence in his available records nor did he provide any evidence that specifically addresses the details of his medical condition or course of action for his recovery.  The 
1994 NCOER only shows that an unspecified medical problem did exist and caused his 
APFT failure in October 1994.  The 1996 NCOER only shows that he was under a profile and did not take an APFT during the 5-month rating period.  

2.  Even though he may have been on a profile for a period longer than 5 months as he alleges, he would have been qualified to perform his duties within established limits of such a profile until such time that it was determined he could no longer do so.  Then, the chain of command would have referred him to medical channels to determine his fitness for continued service.

3.  In the absence of such evidence, he was presumed physically fit to perform his duties within the limits of any existing profile in effect at the time of his separation.  The Board further concludes that based on the RE code 3 on his DD Form 214, he was disqualified from immediate reenlistment without a waiver for a reason not documented in his records.  Also there was nothing in his records to indicate that he applied for or was denied voluntary early retirement.  Based on the extended expiration of his term of service on 21 January 1997, an involuntary separation, he was entitled to only half separation pay. 

4.  The Board presumes administrative regularity in the processing of his involuntary separation that appears in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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

__JP___  __CP___  __OT___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028457	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19970121	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	COMPLETION OF REQUIRED SERVICE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136	
2.		
3.		
4.		
5.		
6.