MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           1 March 2000                   
	DOCKET NUMBER:   AR1999028518

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby 		Member	
	Mr.  John Saputo		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, an increase in disability separation pay or physical disability retirement.  He states that there was an error in his disability severance pay (5 percent)

APPLICANT STATES:  That he was unable to stand for any length of time on his leg because of a plastic knee cap on his right knee.  

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

The applicant enlisted in the Army for three years on 10 January 1973.  The report of medical examination of 9 January 1973 indicates that the applicant was medically qualified for enlistment with a physical profile serial of 1 1 1 1 1 1.  No defects were noted.  In the report of medical history he furnished for the examination the applicant stated that his health was good, and indicated that he did not have, nor ever had any medical problems.

The applicant completed training and was assigned to Fort Gordon, Georgia.  In June 1973 he was assigned to Fort Lewis, Washington as a wireman.

A 28 September 1973 report for suspension of favorable personnel actions (“flagging action”) shows that the applicant was flagged because of a fraudulent enlistment – plastic knee, and elimination action was being considered under Army Regulation 635-200, chapter 14.

On 9 January 1974 the applicant was counseled because of wrongful possession of a controlled substance and unsatisfactory duty performance.  On                     8 February 1974 he was counseled because of failure to make morning formations, reporting late to work, and unsatisfactory duty performance.  On       12 March 1974 he was counseled for reporting late for work assignments and unsatisfactory duty performance.  In each counseling statement the commanding officer stated that the applicant was eligible for promotion to pay grade E-3, however, his advancement was being withheld because he had failed to demonstrate the attitude and performance required by Army standards.  In each instance the applicant acknowledged receipt of the certificate of counseling, and stated that he fully understood that should he continue to behave or perform unacceptable duty, action could be initiated to separate him from the Army.  

A 19 March 1974 interim flagging action report indicates that the chapter 14 action was disapproved, and that the applicant was pending a discharge under the qualitative management program (QMP).

On 1 April 1974 his commanding officer informed him that unless he took positive action to correct his deficiencies, he (his commanding officer) might initiate action to discharge him for unfitness or unsatisfactory performance. 

On 10 April 1974 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged under the provisions of the qualitative management program (QMP) because of failure to make morning formations, reporting late for duty, and unsatisfactory duty performance.  He indicated that the applicant had no desire for further military service.  He recommended that the applicant receive an honorable discharge.

A 16 April 1974 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 2 1 1 1.  That report indicated that the applicant had a scar on his right knee from surgery.  In the report of medical history he furnished for the examination the applicant stated that his health was fair.  That report showed that the applicant had an operation on his knee when he was 15, and that he had an artificial knee cap; and that in August 1968 he had his gall bladder drained. 

On 24 April 1974 the separation authority approved the recommendation, and stated that the applicant would be separated under the provisions of Army Regulation 635-200, chapter 4, and a DA message.  He stated that the applicant’s DD Form 214 would reflect a SPN (separation) code of 21U, and the separation document would indicate, “Separation for failure to demonstrate adequate potential for promotion advancement.”

The applicant was discharged on 15 May 1974 in the pay grade of E-2 under the provisions of Army Regulation 635-200, paragraph 5-37.  Items 17a (Secondary Specialty Number and Title), 17b (Related Civilian Occupation and D.O.T. Number), 21 (Time Lost), and 24 (Disability Severance Pay), all show the initials “DNA”.  Item 24 is otherwise blank except for those initials.  The remarks section of that form (item 27) shows the entries, TLPP, Field Wireman, Lineman, and Separation for failure to demonstrate adequate potential for promotion advancement.

The copy of the DD Form 214 that the applicant submits with his request  shows pen and ink entries in item 24 – the “Yes” block marked and “5%” entered in the space for amount of disability severance pay.  The remarks section shows the pen and ink entry, “Medical Condition Release.”  

Army Regulation 635-200, then in effect, provides for the separation of enlisted soldiers.  Paragraph 5-37 prescribes procedures for the discharge of soldiers for failure to demonstrate promotion potential, and states that discharge is limited to soldiers who fail to demonstrate potential to justify advancement to the grade of E-3 after attaining the normal time in service and time in grade criterion for promotion to grade E-3 without waiver.  A commander who elects not to promote to E-3 must counsel the soldier as to the reasons for his action.  Counseling will be recorded in a written statement signed by the commander and the soldier.  The soldier will indicate that he understands his status, what is expected of him, and what he can anticipate for nonperformance.  Commanders who elect not to promote may elect to initiate separation action, and forward a recommendation to the separation authority.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 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.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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 discharge for failure to demonstrate promotion potential was proper and in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 

2.  The applicant’s medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary. 

4.  The applicant did not have any medically unfitting disability which required physical disability processing.  The pen and ink entries on the DD Form 214 the applicant submitted with his request are bogus.  The applicant was not separated because of a physical disability.  He did not receive disability severance pay.  There was and is no basis for physical disability retirement or separation.

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

6.  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.

7.  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

___gdp__  ___js____  ___mmd_  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028518	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000301	
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. 291	108.00	
2.		
3.		
4.		
5.		
6.