MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 December 2000                  
	DOCKET NUMBER:   AR2000039633

	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. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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 in lieu of her discharge under honorable conditions.

APPLICANT STATES:  That the “Army” stated the primary reason for her separation was her Army Physical Fitness Test (APFT) failure.  However, she notes, in effect, that her APFT failures were because of her medical conditions.  In support of her request she submits a copy of a May 1998 letter from the Adjutant General, U.S. Army Armor Center and Fort Knox, copies of her service medical records, and statements (authored in April 1998) from several individuals regarding her duty performance.

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

The applicant served an initial period of active duty between June 1993 and May 1994 when she was voluntarily discharged because of pregnancy.

She returned to active duty in September 1997 and was assigned to Fort Knox, Kentucky as a personnel services clerk.  Her APFT scorecard indicates she failed two record tests (December 1997 and March 1998) and two diagnostic tests (January and February 1998).

On 20 March 1998 the applicant’s supervisor requested that she be allowed one “additional APFT prior to enforcing separation procedures.”  Her supervisor noted that she has “the desire to remain in the military and by allowing her a retest, will afford her the opportunity to demonstrate this to her chain of command.”

On 9 April 1998 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for two counts of failing to obey a lawful order and disrespect.  The applicant appealed the action but it was denied.  In support of her appeal she submitted the same statements of support she submits to this Board.  Her punishment included a letter of reprimand, 14 days of extra duty and 14 days of restriction.

On 11 May 1998 the applicant’s commander was notified that the applicant was pending a Medical Evaluation/Physical Evaluation Board.  On 18 May 1998 the applicant acknowledged that she was being considered for administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12a (minor disciplinary infractions).  Her commander cited her company grade UCMJ action, negative counseling statements for writing bad checks, breaking restriction, failure to follow instructions and failing two record APFTs as the basis for his recommendation.

In her 1 June 1998 memorandum requesting consideration of her retention on active duty, the applicant cited a misunderstanding about her willingness to participate in remedial physical fitness training as the basis for her UCMJ action, that her indebtedness was related to problems she was having with her bank, that she experienced pain when running as part of her physical training which resulted in a physical profile, and that she’s never had any problems with her duty performance.  She concluded her memorandum by asking for an honorable discharge.

In response to a congressional inquiry the Adjutant General, U.S. Army Armor Center and Fort Knox noted that the applicant was being administratively separated from the Army for misconduct.  The Adjutant General noted that while her “performance in the military reflects debt, breaking restriction after receiving an Article 15, disrespect to a noncommissioned officer, not following an officer’s orders, and not reporting to her place of duty” her failure of the APFT was “the major contributing factor to her separation….”

The applicant’s file contains a DA Form 4187 (Personnel Action) indicating that her duty status changed from “present for duty” to “civilian confinement” on 
10 June 1998 and back to “present for duty” on 13 June 1998.  No explanation for the civil confinement is contained in the applicant’s file.

On 19 June 1998 the applicant did undergo a Medical Evaluation Board (MEB) which concluded that she should be referred to a Physical Evaluation Board (PEB).  Her disability processing was suspended when the Commanding General, U.S. Army Armor Center and Fort Knox concluded that the applicant’s medical conditions were not the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

The applicant was reported as absent without leave (AWOL) between 1 and 
4 August 1998.  As with the earlier civil confinement, her records contained no explanation for the AWOL period.

On 7 August 1998 the applicant’s administrative separation action was approved and on 21 August 1998 she was discharged under honorable conditions.

Army Regulation 635-200, paragraph 14-12a provides for the separation of soldiers who display a pattern of misconduct consisting solely of minor military disciplinary infractions.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier's overall record 

Army Regulation 350-15, which outlines the policies and procedures for the Army Physical Fitness Program, states that soldiers without medical profiles, who repeatedly fail the annual PT test will be either barred from re-enlistment or processed for separation from the service.  Enlisted soldiers are separated under the provisions of Army Regulation 635-200 while officers are separated under Army Regulation 635-100.  A repetitive failure occurs when a record test is taken and failed, the solider is provided adequate time and assistance to improve her or her performance, and failure occurs again.

Army Regulation 635-200, chapter 13, provides for the administrative separation of soldiers for unsatisfactory performance who will not develop sufficiently to participate satisfactorily in further training and/or it is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur and the ability of the soldier to perform duties effectively in the future, including potential for advancement or leadership is unlikely.

Army Regulation 635-40, which establishes the policies and procedure for the separation or retirement of soldier’s by reason of physical disability states that soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.  

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.  While clearly the applicant’s failed APFTs may have contributed to her administrative separation she was separated for misconduct, not unsatisfactory performance.  She has not shown that her medical condition was a substantial contributing cause of the misconduct that resulted in her separation and as such there is no basis for disability retirement or separation.

2.  Although not included in the misconduct cited as the basis for her separation the Board does note that after initiation of her administrative separation the applicant was confined by civil authorities and absent without leave.

3.  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.

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

__amc_  __alr___  __jam___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039633	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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.