MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 October 2000
	DOCKET NUMBER:   AR2000040772

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Elzey J. Arledge Jr.		Member	
	Mr. Jaime Perez		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 general discharge be upgraded to honorable with physical disability retirement or separation.

APPLICANT STATES:  That he hurt his left knee while running during physical training in 1990.  After a year, his knee pain continued.  He was given a “P2” physical profile by a military doctor, which meant that he shouldn’t run 2 miles on the Army Physical Readiness Test (APRT).  He took two APRTs only to fail, so his commander recommended him for administrative discharge.  A doctor at the VA (Department of Veterans Affairs) hospital said nothing was wrong, but it hurts him to run.  He now works at the post office, attends a community college, and wants his discharge changed so he can get help for school and make his knee better.  In support of his request, the applicant submits a copy of his physical profile dated 2 November 1991.

COUNSEL CONTENDS:  That the character of the applicant’s discharge is too harsh; there is nothing in the applicant’s record to indicate that he had any lost time, nonjudicial punishment, or trials by court-martial.  Additionally, the applicant had a physical disability of the knee that diminished his ability to pass his required APRT.

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

He entered active duty on 8 March 1990 and, after training, was assigned to Germany.

On 2 November 1991, the applicant was given a physical profile limiting his participation in physical fitness training to running at his own pace and distance; and authorized him to take an alternate APRT consisting of push-ups, sit-ups, and walking.

On 26 November 1991, the applicant received a formal counseling statement for violating his physical profile by playing basketball at the gymnasium during platoon physical training.  When informed of the violation, the applicant’s response was, “So if it hurts I’ll take my medicine,” and continued playing basketball.

On 3 December 1991, the applicant again received a formal counseling statement concerning his poor attitude, poor duty performance, and deliberately scheduling appointments to avoid standing a scheduled company inspection.

On 11 December 1991, the applicant failed his record APRT by receiving a “no go” on his 3-mile walk portion of the test.  His time for the 3-mile walk was 
54 minutes and 8 seconds.

On 8 January 1992, the applicant passed a diagnostic (not for record) APRT and received a “go” on his 3-mile walk with a time of 31 minutes.

On 22 January 1992, the applicant again failed his second record APRT be receiving a “no go” on his 3-mile walk.  His time for the walk was 45 minutes and 16 seconds.

A 24 February 1992 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 2 1 1 1, indicating no physical or mental limitations for duty other than a minor leg impairment.  A report of mental status evaluation determined that he was mentally responsible, able to distinguish right from wrong and adhere to the right, that he had the mental capacity to understand and participate in board proceedings, and he met the medical standards for retention in the Army.

On 10 April 1992, the applicant’s commander recommended he be discharged for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  The applicant consulted with counsel and declined to submit a statement in his own behalf.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  The separation authority approved the recommendation and directed the applicant be issued a General Discharge Certificate.

The applicant was discharged on 22 April 1992 at Fort Jackson, South Carolina.  He had 2 years, 1 month and 15 days of creditable service.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  Chapter 13 of the regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

On 8 April 1996, the Army Discharge Review Board, in a unanimous decision, denied the applicant’s request for upgrade of his discharge.

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 or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Paragraph 3-2b(2), Army Regulation 635-40 further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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.

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 administrative separation was accomplished in compliance with applicable regulations, with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

2.  The applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.  Competent medical authority determined that the applicant was medically fit for separation.  Accordingly, he was discharged for reasons other than physical disability.

3.  After receiving a physical profile limiting the running portion of his physical training, the applicant was not required to participate in the 2-mile run while taking the APRT.  His physical profile authorized an alternate APRT allowing the applicant to walk 3 miles instead of running for 2 miles.  

4.  Counsel’s contention that the applicant’s general discharge is too harsh is rejected.  An honorable discharge is a separation with honor, and is appropriate when the quality of the soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  The applicant has not demonstrated that quality of service which would justify changing the characterization of his discharge.

5.  Counsel’s further contention that the applicant’s physical disability diminished his ability to pass the APRT is without merit.  Competent medical authority authorized the applicant to participate in an alternate APRT based on the condition of his knee.  The applicant twice failed the alternate test.

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 this 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

__slp____  __eja___  __jp_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000040772	
SUFFIX		
RECON		
DATE BOARDED	20001005	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19920422	
DISCHARGE AUTHORITY	AR635-200 CH13	
DISCHARGE REASON	A49.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.