MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           9 November 2000                 
	DOCKET NUMBER:   AR2000040426

	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	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch, 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: That his discharge be changed from honorable (he questions whether that is the type of discharge he has) to medical (disability).

APPLICANT STATES:  That his unit barred him from reenlisting.  The bar to reenlistment was based on his failure of an Army Physical Fitness Test (APFT), and his failure to retake the APFT.  He was unable to retake the APFT due to a serious and disabling lower back injury received while performing his civilian job.

In support of his application, he has submitted a self-authored statement of the facts and circumstances surrounding his injury; a state of California report of occupation injury report indicating that he was involved in an accident on 3 June 1995 while performing his civilian job as a truck driver; a letter from a civilian doctor, dated 29 September 1995, addressed to commanding officer (no further address shown), stating that the applicant had a medical condition which precluded his participating in any physical activities, an Individual Sick Slip     (DD Form 689) dated 9 September 1995 showing that he was treated for a stomach related illness and numerous reports detailing the extent of the applicant’s civilian medical treatment for a back injury.

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

He enlisted in the Army National Guard (ARNG) for a period of 8 years on 31 December 1987 and served until February 1992.  He then entered the US Army Reserve (USAR) Control Group (Annual Training) where he remained until he was assigned to a Troop Program Unit (TPU) on 12 January 1995.  He served in the TPU until his discharge for ETS on 20 January 1996.

Orders 020-20, dated 20 January 1996 discharged him from the USAR effective 20 January 1996 in accordance with Army Regulation (AR) 135-178, (ETS).

A summary of his retirement points for the period 1992 through January 1996 reflects that he attended drill 6 times prior to his discharge on 20 January 1996.

In his statement of the circumstances of his accident the applicant recounts that after the 3 June 1995 accident, he was under the care of civilian physicians and he kept his unit abreast of his condition.  He says that he had made arrangements to retake the APFT in December 1995.  However, on 7 and 19 December 1995, because of pain in the back, he had to undergo a series of steroid injections by his civilian physician that prevented him from taking the makeup APFT.  He believes his discharge was the direct result of his lower back injuries and his inability to take APFT.

On 9 September 1995 the applicant sought military medical treatment for complaints of nausea, vomiting, diarrhea, and stomach pains.  There is no indication on the Individual Sick Slip that he advised the treating physician that he was also suffering from a back injury.

AR 40-501, Standards of Medical Fitness, provides in pertinent part that soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a medical evaluation board (MEB) as defined in AR 40-3 and will be referred to a physical evaluation board (PEB) as defined in AR 635-40, with the following caveats: USAR or ARNG soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 of this regulation and will not be referred to a PEB. 

Chapter 9 of the regulation provides that normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged from the USAR.  They will be transferred to the Retired Reserve only if eligible and if they apply for it.  Reservists who are found unfit may request continuance in active USAR status.  In such cases, physical disability incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. 

AR 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury.  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.

That same regulation goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness.  This presumption of fitness 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.

AR 135-178, Separation of Enlisted Personnel, provides in pertinent part, that a soldier being discharged on expiration of enlistment, reenlistment, or fulfillment of service obligation will be awarded a character of service of honorable, unless an uncharacterized description of service is required or the soldier has been transferred to the Individual Ready Reserve to fulfill a service obligation and given a service characterization of less than honorable upon transfer.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and, it is concluded:

1.  The applicant’s accident occurred on 3 June 1995.  He contends that he kept his unit apprised of his condition but also says that a letter of his disability was not sent to the unit until 29 September 1995.  It is noted that the copy of the letter he has provided does not show a unit address nor, is there any indication in the available records that the unit received it.  Had the letter been received or had the applicant advised his commander of his injury, the commander would have been compelled to refer him to a military medical treatment facility for a determination of his fitness for duty.  However, there is no evidence in the record and he has provided no evidence showing that his injuries were ever evaluated by military authorities.  In the absence of such evidence, the Board must presume that the actions taken in his case were proper.  

2.  His summarized retirement point record shows that in a period of three years he appears to have attended unit training sporadically.  While there is no evidence that he was cautioned about excessive absences there is also no evidence that his unit attempted to bar his reenlistment for any reason to include failure to pass an APFT.  In short, the record is unclear as to his participation status before, during and after his injury.

3.  Without a finding of medical disqualification and absent a determination that his injuries were the proximate result of military duties, there would have been no basis to refer the applicant to a PEB or to consider him for a medical retirement.  Therefore, his discharge for ETS is appropriate and there is no reason to change it.

4.  Notwithstanding the foregoing, the regulation governing ETS discharges prescribes that such discharges will be considered to have been honorable unless there is reason for another characterization, and there appears to be no reason for any other characterization in his case.  Accordingly, the Army Review Boards Agency Support Division, St. Louis will be requested to issue the applicant an Honorable Discharge Certificate.

5.  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.

NOTE:  The ARBA Support Division St. Louis is requested to issue the applicant a DD Form 256A, Honorable Discharge Certificate, for the period 30 December 

1987 through 20 January 1996, in accordance with discharge orders 020-20, dated 20 January 1996.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___jlp ___  _____bjl _  ___owt__  DENY APPLICATION

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

INDEX

CASE ID	AR2000040426	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001109	
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 
	
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