MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 April 2002
	DOCKET NUMBER:   AR2002071144

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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, that his Army Physical Fitness Test (APFT) failure of 1 February 1992, be expunged from his record.  

APPLICANT STATES:  In effect, that the APFT failure in question was erroneous because he was under medical care and treatment from 5 June 1991 through 
28 July 1992, for a medical condition that ultimately led to his separation from the Army.  In support of his application, he provides various medical documents outlining his medical condition and treatment beginning on 5 June 1991, a memorandum from his unit commander, and a memorandum from a neurology doctor.  

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

On 2 March 1989, he entered active duty in the Regular Army and he served for 
3 years, 4 months, and 27 days until 28 July 1992, at which time he was honorably separated, by reason of physical disability with severance pay.  

The record confirms that the applicant was involved in a motor vehicle accident in September 1989, and that he was subsequently processed for separation through the Physical Disability System.  This medical processing was based on the following diagnosed medical conditions:  a diagnosed familial essential tremor-severe, that existed prior to his entry into service; and common migraine headaches - moderate to severe, that originated in September 1989.  

On 1 February 1992, the applicant took and failed the APFT.  Although he was undergoing medical treatment for the medical condition that ultimately led to his medical discharge, there is a Physical Profile (DA Form 3349), dated 23 March 1992, in the record, which confirms that the applicant had a permanent three 
(P-3) profile.  This document also verifies that his medical condition did not preclude him from taking the normal APFT test consisting of the two mile run, push-ups, and sit-ups.  

The separation document (DD Form 214) issued to the applicant on the date of his separation, 28 July 1992, confirms that he was separated under the provisions of paragraph 4-24b(3), Army Regulation 635-40, by reason of physical disability with severance pay.  This document also verifies that at the time of his discharge, he had completed a total of 3 years, 4 months, and 27 days of active military service, and he held the rank and pay grade of private first class/E-3.  

In support of his case, the applicant provides medical record documents that confirm he began medical treatment for his condition on 5 June 1991.  In addition, he provides a memorandum from a neurology doctor that recommended that his military wife be granted a discharge to support him because his progressive medical condition resulted in his being unable to do certain activities. Finally, he provides a memorandum from his unit commander, dated 24 March 1992, that confirms that he was not working in his military occupational specialty (MOS) due to his permanent profile at that time. 

Army Regulation 40-501 (Standards of Medical Fitness) prescribes the policies governing physical profiling.  Paragraph 7-11 contains guidance on the preparation and distribution of the DA Form 3349.  It states, in pertinent part, that the DA Form 3349 will be used to record both permanent and temporary profiles; in addition, to providing guidance on the physical activities a member can or cannot perform based on his medical profile limitations.  Paragraph 7-11a(2)h specifically states that Item 7 of the DA Form 3349 will list the APFT activities a soldier can perform within his profile limitations.  

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 Board notes the applicant’s contention that his APFT failure should be removed from his records because he was under medical care at the time.  However, it finds insufficient evidence to support this claim.  

2.  The evidence of record confirms that the applicant was undergoing medical treatment for the condition that ultimately led to his medical discharge when he failed his APFT on 1 February 1992.  However, a DA Form 3349 on file verifies that this medical condition did not preclude him from taking the normal APFT.  Therefore, the Board concludes there was no error connected to the filing of the applicant’s APFT failure in his record.  

3.  Further, the Board finds that the applicant has failed to provide any independent evidence to show that retaining the APFT failure document on file in his record would result in some injustice to him.  Therefore, the Board concludes that that removing it from his record would provide no effective relief and is not warranted at this time.  

4.  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.

5.  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

    JHL         GDP            CG         DENY APPLICATION

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

INDEX

CASE ID	AR2002071144	
SUFFIX		
RECON		
DATE BOARDED	2002/04/25	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/07/28	
DISCHARGE AUTHORITY	AR 635-40 	
DISCHARGE REASON	Physical Disability with severance pay. 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  281	126.0400	
2.		
3.		
4.		
5.		
6.