MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           13 February 2001                  
	DOCKET NUMBER:   AR2000042192

	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. June Hajjar		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Shirley L. Powell		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 separation be changed from honorable to honorable with medical conditions.

APPLICANT STATES: That in September 1995 he requested a medical review for his marked diabetes, which is a disqualifying, condition.  He has still not received a response.

In support of his application he provides a copy of a Report of Medical History, dated 6 April 1995.  The applicant was found to have two disqualifying conditions marked diabetes and attempted suicide.  The applicant was found disqualified for enlistment.

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

He has a basic active service date of 21 June 1973.  He last reenlisted in the US Army Reserve (USAR) on 5 November 1989, was trained as a 92Y30 (Unit Supply Specialist), was in the Active Guard and Reserve (AGR) Program, and was promoted to pay grade E-6.

On 20 June 1994, the applicant was counseled that he had been selected for a Department of the Army Bar to Reenlistment under the Qualitative Management Program.  The applicant indicated he possibly had medical reasons that were causing and/or contributing to his inability to pass the Army Physical Fitness Test (APFT).  The applicant was scheduled for a physical examination on 29 June 1994.

On 29 September 1994 the applicant was counseled that his physical examination did not reveal anything medically that would prevent him from successfully passing the APFT.  At that time the applicant requested and received approval to remain on active duty to complete his enlistment contract that expired on 15 October 1995.  The applicant by his signature concurred with the September 1994 counseling statement.

The applicant completed Department of the Army (DA) Form 8029-R (Statement of Options, US Army Reserve, AGR Program).  He selected option 2, which states, “I desire to complete my remaining term of active duty in an Active Guard Reserve status and will take no further action”.

The applicant was honorably discharged on 15 October 1995 under the 

provisions of AR 635-200, paragraph 16-8 due to a reduction in force.  He had completed 16 years, 10 months, and 05 days of creditable service.

On 19 July 1996 the US Army Reserve Personnel Center issued Orders D-07-800121.  In addition to authorizing the discharge of the applicant it reflects that he took an expiration term of service physical examination on 15 February 1996. The physical examination was not available for review.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 allows soldiers who receive Department of the Army imposed or locally imposed bars to reenlistment to apply for immediate discharge. Paragraph 16-8 specifically applies to personnel separated due to reduction in force, strength limitations, or budgetary constraints.

AR 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.

AR 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. 

The same regulation in paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which 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.

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 presented a 6 April 1995 physical examination as supporting evidence that he had a physically unfitting condition prior to discharge.  There is evidence, however, that this was not his latest physical examination.  The April 1995 examination was for the purpose of enlistment not retention.  He was found disqualified for enlistment.  The standards for enlistment are more stringent than for retention.  The block on the medical form for position (title, grade, component) contains the entry “civilian” not the rank the applicant held at that time which was staff sergeant.  It appears that the Military Entrance Processing Station misunderstood the purpose of the examination and therefore, evaluated him under the wrong standards.  This also explains why when the applicant was found with a medically disqualifying condition he was not referred to a medical evaluation board as dictated by AR 635-40.

2.  Although the applicant may have had diabetes while on active duty, there is no evidence his diabetes ever became physically unfitting.

3.  On 29 September 1994 the applicant was counseled following a physical examination, which indicated there were no medical reasons preventing him from passing the APFT.  There was no mention of diabetes and the applicant concurred with the counseling without comment.  According to the applicant he then took another physical examination in April 1995 which found he had a medically disqualifying condition; but he waited until September 1995 to request a medical review board.  Five years later he states that, he is still waiting for a response to his request.  The Board can not accept this scenario of events without supporting evidence.  It is noted that medical evaluation boards are convened when the medical treatment facility commander determines they are necessary, not at the request of the individual.

4.  There is no evidence in the available record and the applicant has provided no evidence, which shows that he had a physically unfitting condition prior to his separation.  

5.  The applicant’s selection for a Department of the Army Bar to Reenlistment under the QMP and subsequent discharge were accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights. 

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000042192	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
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.	108.01	
2.		
3.		
4.		
5.		
6.