MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 January 2001                   
	DOCKET NUMBER:   AR2000040840

	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:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Walter T. Morrison		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 the narrative reason on his DD Form 214 (Discharge Document) be changed to “Physical Standards” and that his special program designator (SPD) code be changed to LFT or JFT.

APPLICANT STATES: That he was separated from the Regular Army due to two consecutive failures of the Army physical fitness test (APFT).  The current narrative reason and related SPD code have resulted in the Department of Veterans Affairs (DVA) denying his claim for educational benefits under the Montgomery GI Bill.  He states that the DVA informed him that if his SPD code was changed to either LFT or JFT it would entitle him to 21 months of benefits.  He served honorably for 28 months including 18 months with the 1st Ranger Battalion.  He says that he graduated from the Special Forces Assessment and Selection Course and was selected for training as a Special Forces Medical Sergeant.  His only mistake was not realizing how difficult it would be for a 36 year old to get back in shape after being on leave for 33 days.

In support of his request, he submits a copy of Military Personnel Message (MILPER) Number 99-120, an enlisted record brief, a University of the State of New York Diploma and copies of his sprinkler fitter, commercial pilot and scuba instructor licenses.

EVIDENCE OF RECORD: The applicant's military records were not available.  
The information herein was provided by the applicant.

The applicant’s DD Form 214 indicates that he entered active duty in the Regular Army on 2 July 1996, was trained as an 11B (Infantryman) and achieved the rank of specialist.  He was honorably separated on 6 November 1998 for unsatisfactory performance and given SPD code LHJ and a reentry code of “3”.

MILPER Message Number 99-120 announced a change to Army Regulation (AR) 635-5-1 (Separation Program Designator).  It states that it had been determined that all separations of enlisted soldiers beyond entry status for two (2) consecutive failures of the APFT effected under the provisions of                  AR 635-200, paragraph 13-2F, will have the following data entered on DD Form 214: Regulatory Authority: AR 635-200, paragraph 13-F; narrative reason: Physical Standards; and appropriated SPD code entry of LFT for involuntary release from active duty or JFT for involuntary discharge.

AR 635-200 (Enlisted Personnel Separations), chapter 13, provides in pertinent part, that commanders will separate a soldier for unsatisfactory performance when it is clearly established that it is likely 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. 

AR 635-5-1 states in pertinent part, that LHJ is the SPD for “Unsatisfactory Performance”, this designator is under the heading of Involuntary Discharge.

Title 38, United States Code, permits the DVA to administer its programs in accordance with its own policies and regulations.  Consequently, the DVA is not governed by Army regulation. 

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 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.

2.  The MILPER Message authorizing the change of SPD codes for individuals who were separated for failure of two consecutive APFT did not authorize the change for soldiers separated prior to the release date of the message.  If it were the intention of the Army leadership that previously separated soldiers were to have their SPD codes changed, it would have been stipulated in the message.  In the absence of such a directive the Board concludes that the MILPER message has no bearing on the applicant’s situation.  The applicant’s DD Form 214 correctly reflects the personnel policies in place at the time of his separation.

3.  Entitlement to DVA benefits is wholly within the purview of the DVA and is not a basis upon which this Board grants relief. 

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

___lls         ___teo___  ____wtm   DENY APPLICATION

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

INDEX

CASE ID	AR2000040840	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010123	
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.	110.02	
2.		
3.		
4.		
5.		
6.