MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            24 October 2000   
	DOCKET NUMBER:   AR2000044363

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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:  In effect, that his records be corrected to reflect that he was released from active duty by reason of physical disability.  He states, in effect, that his discharge for unsatisfactory performance was the result of his inability to “pass the sit up portion of the Army physical fitness test.”  He notes that it was his “service connected back injury” that prevented him from passing the sit up portion of the test.  The applicant states that because his separation document indicates that he was released for unsatisfactory performance, vice a service connected disability, he is unable to obtain benefits under the G.I. Bill.  In support of his request he submits copies of his service medical records and a copy of his VA disability rating.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He entered active duty on 9 July 1993 and was trained as a patient administration specialist.

In June 1994 he was involved in a minor motor vehicle accident and was treated for neck and back pain.  On 10 March 1995 he was issued a 5 day temporary profile for low back pain.  The profile was extended until 1 April 1995 on 17 March 1995. The 17 March 1995 profile specifically prohibited push-ups and sit-ups but allowed the applicant to run at his own pace.

On 3 April 1995, after his profile had expired, the applicant was administered an Army Physical Fitness Test (APFT).  He failed all three portions of the test (scores: push-ups-56, sit-ups-40, 2-mile run-59).  The applicant was counseled concerning his test failure, referred for remedial training, and informed that he would be scheduled for a second test after 90 days and if he failed the second test he would be “recommended for separation….”  The applicant acknowledged the counseling statement.

On 22 May 1995 the applicant was issued another 30 day profile for low back pain which precluded physical training for 30 days.

On 8 September 1995 the applicant was administered the APFT but failed the sit-up portion of the test (scores: push-ups-64, sit-ups-38, 2-mile run-85).  The applicant was counseled again and informed that he would be recommended for separation and scheduled for a separation physical examination.

On 3 October 1995 the applicant was issued another 30-day profile for low back pain.  His separation physical examination noted the applicant had complained of recurrent back pain and that he attributed his failed physical fitness test to his back condition.  The examining physician indicated that back x-rays were within normal limits and there was no evidence of neurological impairment.  The physician made no comments indicating that the applicant’s inability to pass the fitness test was the result of his low back pain.  He did note that he recommended further “w/up” (work up) for low back pain with routine scheduled follow-ups.  He issued a physical profile of 1-2-1-1-1-1 but did not refer the applicant for disability processing.

On 16 November 1995 the applicant’s unit commander initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He cited the applicant’s two failed physical fitness tests as the basis for the separation and indicated the applicant would receive an honorable discharge.  The applicant acknowledged receipt, consulted with counsel and elected not to submit any statements in his own behalf.

The recommendation was approved and on 29 December 1995 the applicant was honorably discharged.  Prior to his separation, on 30 November 1995, the applicant acknowledged in a counseling statement that as a result of his separation he would not be eligible to receive education benefits under the Montgomery G.I. Bill.

In June 1996 the VA granted the applicant a 10 percent disability rating for “mechanical low back strain” retroactive to 1 January 1996.

Army Regulation 635-200, chapter 13 states that initiation of separation proceedings is required for soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test per Army Regulation 350-41 unless the responsible commander chooses to impose a bar to reenlistment.

Army Regulation 350-41 states that soldiers without medical profiles, who repeatedly fail the APFT, will be either barred from re-enlistment or processed for separation from the service.  A repetitive failure occurs when a record test is taken and failed, the soldier is provided adequate time and assistance to improve his or her performance, and failure occurs again.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, 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.  When a solider is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 December 1995, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 29 December 1998.

The application is dated 17 May 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___esc__  ____jtm_  ___mp___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2000044363	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
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.	142.00	
2.		
3.		
4.		
5.		
6.