MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 August 2000                   
	DOCKET NUMBER:   AR2000042916

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Calvin M. Fowler		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 an investigation be conducted into the manner of his separation; that an investigation be conducted into the practices in which Madigan Army Medical Center conducts its fit for duty evaluations; that the Army’s regulation for eligibility for medical separation be revised to coincide with that of the Department of Veterans Affairs on what is disabling; that his discharge be upgraded and all negative reports relating to his situation be expunged from his records; that he be awarded a 100 percent disability rating and medically retired and receive all pay and allowances retroactive to the date of his discharge; that he be awarded at least an Army Commendation Medal and/or a Meritorious Service Medal; that his chain of command be given at least a letter of reprimand for the harm they caused him; that he receive a formal apology from his chain of command and the United States Army for the harm caused him; and that he be given “special” consideration for his entrepreneurial endeavors in starting his own business.  

APPLICANT STATES:  That an automobile accident in June 1993 was the beginning of his problems.  He was prescribed medication for pain and sleep, given a 2-week “light duty” profile, and sent on his way.  On one occasion, he desperately needed to take leave to help his wife after she had surgery.  He was given charge of quarters duty and told he had to find his own replacement if he wanted to be with his wife.  No one would take his place.  He served all but 3 hours of the 24-hour duty, made sure the building and its contents were secure, told his runner he had to leave, annotated his actions in the log and left.  He received an Article 15 for this.  Other soldiers did worse and never received any punishment.  After coming off profile he returned to duty and was ordered to take part in morning physical training (PT).  After experiencing extreme pain, he was medically evaluated, given medication and a one-month “light duty/non-deployable" profile.  After this profile expired he returned for a re-evaluation.  He did this for eleven consecutive months and each month was given another “light duty/non-deployable” profile.  At this time his chain of command became disenchanted with him.  They began giving him special duties they felt were permissible for someone in his condition.  He was a physically fit soldier still.  During these eleven months he did in fact gain more weight.  He was accused of malingering although he took part in whatever he could that was allowed by his profile.  He believes at least part of the reason for this unfair treatment was discrimination (he is white; most of his enlisted chain of command was African-American).  At the end of his eleventh month on profile he was scheduled for a fit for duty examination.  The evaluation was “short” to say the least and the doctor stated there was no reason for him to be recommended for medical retirement or profile extension.  He was still bent over in pain and this doctor told him there was nothing wrong with him!  His unit then told him he had 90 days to get back in shape and pass the Army Physical Fitness Test (APFT).  Needless to say, he failed the tests.  He was given an honorable discharge but his Certificate of Release or Discharge from Active Duty, DD Form 214, shows he was separated for “unsatisfactory performance.”  Every time he applies for a job he must explain what that really means.  The VA has given him a 40 percent disability rating.  

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

After having had prior service in the Army National Guard, he enlisted in the Regular Army on 1 April 1987.  He was awarded military occupational specialty 91A (Medical Specialist).  He was promoted to Sergeant, E-5 on 1 September 1992 and was awarded MOS 91B (Medical Noncommissioned Officer) at this time.

On 25 June 1993, the applicant was involved in a motor vehicle accident and received treatment for a complaint of a stiff neck and left leg and back pain.  

Between 14 July 1993 and the date of his fitness for duty examination the applicant was given ten short-term temporary profiles for back pain.  

On 4 January 1994, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for leaving his appointed place of duty without authority on or about 6 December 1993.  He presented no matters in defense, mitigation and/or extenuation and did not appeal the punishment.  

On 12 January 1994, a neurology consultation assessed the applicant as having cervical dorsal strain with occipital neuralgic headaches; probable mild bilateral cervical radiculitis with no objective evidence of radiculopathy; and lumbodorsal strain with no objective evidence of radiculopathy.  The physical examination generally revealed “normal” findings.  

On 24 January 1994, the applicant underwent an electromyography (EMG) examination.  The EMG examiner could find no electrophysiologic evidence or objective neurologic findings of a radiculopathy and felt that the applicant’s primary problem was more of a soft tissue injury type.  

On 4 February 1994, a whole body bone scan and SPECT (sic) of the applicant’s lumbosacral spine found no abnormality in the cervical spine, cervicothoracic junction or midthoracic spine and no abnormality in the lumbar or lumbosacral spine.  A very subtle focus of mildly increased activity on the right at S1 was revealed which could have been post-traumatic or degenerative in nature.  

On 31 March 1994, Orthopaedic Service conducted a fitness for duty evaluation on the applicant.  The Staff Orthopaedic Surgeon noted that he found no objective findings on which to base a permanent profile after an extensive work-up.  The applicant was recommended for full duty without profile.  

On 12 May 1994, the applicant was flagged for being overweight.
In May and June 1994, the applicant was given two short-term temporary profiles for limitations of no situps and run at own pace, respectively.  The last temporary profile expired on 17 June 1994.

On 7 July 1994, the applicant was counseled for failing to pass the APFT.  On  11 August 1994, he was counseled for failing to pass the APFT for the second consecutive time, for being late for accountability formation, and for failing to inform members of his squad on changes in the accountability formation.

On 13 September 1994, the applicant underwent a mental status evaluation.  The examining physician found the applicant to be mentally responsible for his behavior, to be able to distinguish right from wrong and to possess sufficient mental capacity to participate in administrative proceedings.

On 29 September 1994, the applicant completed a separation physical and was found qualified for separation.  It was noted at this time that he had no physical profile. 

On 16 November 1994, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The specific reason cited was the applicant’s second consecutive failure of the APFT on 11 August 1994.  

On 16 November 1994, the applicant waived consideration of his case by an administrative board if his discharge would be characterized as no less than honorable.  He elected not to submit a statement in his own behalf.  

On 6 December 1994, the appropriate authority approved the recommendation and directed the soldier be issued an honorable discharge.

On 16 December 1994, the applicant was discharged, in pay grade E-5, under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory performance, with an honorable discharge.  He had completed 8 years, 3 months and 27 days of creditable active service and had no lost time.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 4-9 states that the medical treatment facility (MTF) commander having primary medical care responsibility will conduct an examination of a soldier referred for evaluation.  The MTF commander will advise the soldier’s commanding officer of the results of the evaluation and the proposed disposition. If it appears the soldier is not medically qualified to perform duty, the MTF commander will refer the soldier to a medical evaluation board.

Army Regulation 40-501 governs standards for enlistment, retention and separation.  Chapter 7 discusses physical profiling.  In pertinent part, it states that a temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity.  In no case will individuals carry a temporary profile that has been extended for more than a total of 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.  

Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  In pertinent part, it states that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical 
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency (SEE ATTACHED).  The medical advisor opined that the applicant’s medical records documented his many outpatient clinic and dispensary visits for back pain without objective evidence of pathology being found.  No evaluation found medical conditions severe enough to terminate his Army career.  In March 1994, a Fitness for Duty Examination performed by doctors specializing in Orthopaedic Surgery determined that he was fit for duty without profile limitations.  The evidence of record did not support changing his administrative separation to a medical retirement.
The advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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 applicant provides no evidence to substantiate his contention that his separation was predicated upon the racial biases of his enlisted chain of command.

3.  In reference to the Article 15, in the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander who was on the scene at this late date.  The Board is sympathetic with the applicant’s desire to be with his wife; however, for soldiers military duties take precedence over personal affairs.  He provides no evidence to show that other soldiers did “worse” things and never received punishment.

4.  The Board finds no fault with the applicant’s commander “ordering” him to take part in PT after coming off his profile.  The commander was not a medical authority.  Once medical authorities removed the applicant from profile limitations, it was the commander’s duty to get the applicant “back into shape.”  It was the applicant’s right to return for reevaluation after PT just as it was then the commander’s duty to abide by the applicant’s new profile limitations.  The applicant does not contend that his commander caused him to violate his profile.

5.  Before the applicant entered his 12th month on a temporary profile he was properly evaluated by the MTF to determine if he was fit for duty or if he should be referred to a medical evaluation board.  The evidence of record shows that the applicant had been continuously evaluated by medical personnel since his injury.  In January and February 1994 he was evaluated by neurology, he was given an EMG and he was given a whole body scan and no evidence of pathology was found.  The Board concludes that the finding of fit for duty was appropriate in the circumstances.  In addition, the Board notes that the applicant states in his application that he was a physically fit soldier.

6.  Once the applicant was found physically fit and his temporary profile limiting his ability to do PT was lifted, it was the commander’s duty to once again try to “get him in shape.”  Since there was no medical contraindication to the applicant’s taking the APFT, his administrative separation for unsatisfactory performance after failing his second consecutive APFT was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The Board notes that the applicant waived his right to an administrative board hearing and did not submit a statement on his own behalf.  Given the circumstances of the case, the Board concludes there is no erroneous “negative” information that needs to be expunged from his records.

7.  The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

8.  The applicant’s commander made a decision not to recommend him for a military decoration and the Board concludes that it would not be appropriate to override the commander’s decision.

9.  The Board is not an investigative body and does not investigate either an applicant’s personal claims or his claims of misconduct against another individual or agency.  Neither does the Board issue or recommend issuance of letters of reprimand to any individual.

10.  The applicant’s request that he be given “special” consideration for his entrepreneurial endeavors in starting his own business is not a matter under the jurisdiction of the Board but may be a matter in which the Department of Veterans Affairs could assist him.  His request for such consideration should be directed to that Department.

11.  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

__jns___  __esd___  __owt___  DENY APPLICATION

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

INDEX

CASE ID	AR1999030193	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.