MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            13 July 2000      
	DOCKET NUMBER:   AR2000039161

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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, disability retirement or separation.

APPLICANT STATES:  In a self-authored statement, that the real reason she was released from active duty was because of her “inability to fulfill the physical training requirements of continued military service.”  She states that she hurt her knee during a 12-mile road march in October 1998.  She notes that at the time of her separation physical examination she was still experiencing “sharp, shooting pains in the knee [and] the knee would periodically, without notice, lock up….”  She states that the examining physician “ordered an MRI consultation” but she was unable to make the appointment because she lacked transportation to reach the military hospital.  She states that she was “unable to satisfy the physical training requirements [because her] knee condition precluded it, not that [she] chose not to perform at the best/highest level [she] could….”  She notes that she was never informed of her options and as such requests that the reason for her separation be changed to show it was the result of physical disability.  Other than her self-authored statement, the applicant submits no evidence in support of her request.

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

She entered active duty on 7 January 1998 and was ultimately assigned to Germany as a personnel administration specialist.  On 18 March 1999 the applicant was honorably discharged under the provisions of Army Regulation 635-200, Chapter 13.  Prior to her separation the applicant was awarded an Army Good Conduct Medal.

Documents associated with the applicant’s administrative separation were not in records available to the Board nor were any service medical records available.

Army Regulation 635-200, Chapter 13, states that a soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Unsatisfactory performance includes soldiers without medical limitations, who have two consecutive failures of the Army Physical Fitness Test; soldiers who, in their commander's judgment, will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier; the soldier's retention would have an adverse impact on military discipline, good order, and morale; it is likely that the soldier will be a disruptive influence in present or future duty assignments; it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; or the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely.

When separation for unsatisfactory performance is appropriate the commander will notify the soldier in writing that his or her separation has been recommended. The commander will cite specific allegations on which the proposed action is based and will advise the soldier of the following rights: 

a. To consult with consulting counsel within a reasonable time (not less than 3 duty days). Soldiers may also consult with civilian counsel retained at their own expense. 

b. To submit statements in his or her own behalf. 

c. To obtain copies of documents that will be sent to the separation authority supporting the proposed separation. 

d. To waive the above rights in writing. 

The service of soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 

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 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a solider 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.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further 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.  In the absence of evidence to the contrary, it is presumed that the applicant’s administrative separation was accomplished in accordance with applicable laws and regulations.

2.  The fact that the applicant’s characterization of service was honorable and that she was awarded an Army Good Conduct Medal supports a conclusion that the applicant’s separation was not based on any problems with her “duty” performance.  Rather, based on her statements, it is likely that it was the result of consecutive failures of the Army Physical Fitness Test.

3.  While the applicant maintains that the real reason for her separation was because of her knee condition she presents no evidence which supports that conclusion.  

4.  There is no evidence, and the applicant has not provided any that indicates she had a medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

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 that 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

___jlp__  ____mhm_  _jea____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039161	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000713	
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.	108.00	
2.		
3.		
4.		
5.		
6.