MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            28 AUGUST 2001
	DOCKET NUMBER:   AR2001056146

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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:  In effect, disability separation.

APPLICANT STATES:  That he was not properly treated for his injuries, therefore he was not a 100 percent physically fit to take the Army Physical Fitness Test , which he refers to as his PT test, and that a Physician Assistant (PA) diagnosed his injuries as chin splints, however a second PA found that he had a ¾ inch crack in his chins.  He submits no evidence in support of his request.

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

On 15 August 1996, he enlisted in the Regular Army for a period of 3 years.

There are no medical records in the applicant’s available records.

The facts and circumstances concerning the applicant’s separation are not in his available records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was honorably discharged on
16 June 1998 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had 1 year, 10 months and 2 days of active service. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or 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 to 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.

Army Regulation 635-40, paragraph 2-2b, as amended, 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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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

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 to show that there was an error or injustice in this case.

2.  There is no evidence in the available records nor did the applicant provide documentation that he had any medically unfitting disability, which required physical disability processing at the time of his separation.  

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with applicable law and regulations, and that what the Army did in his case was appropriate.

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

__JNS __  __TRD __  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001056146	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010828	
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.	108.00	
2.		
3.		
4.		
5.		
6.