IN THE CASE OF: BOARD DATE: 17 July 2008 DOCKET NUMBER: AR20080007237 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a medical discharge. 2. The applicant states that her medical files were not reviewed. 3. The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. 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. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted on 18 November 1992 and trained as a legal specialist. 3. On 10 January 1994, the applicant failed the Army Physical Fitness Test (APFT). She was counseled on 13 January 1994 and it was recommended that she be placed in the overweight program. 4. On 25 March 1994, the applicant failed the AFPT. 5. The applicant’s DA Form 2A (Personnel Qualification Record, Part I), prepared on 5 April 1994, shows the applicant’s physical profile was 111111. 6. On 12 April 1994, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance (due to failure of two consecutive APFTs). The separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge. 7. On 15 April 1994, the applicant elected to waive a separation physical examination. 8. Accordingly, the applicant was released from active duty on 16 May 1994 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. She had served a total of 1 year, 5 months, and 29 days of creditable active service. 9. There is no evidence of record which shows the applicant was diagnosed with any medical condition prior to her release from active duty on 16 May 1994. 10. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not 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 or 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. 11. 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. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 12. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. DISCUSSION AND CONCLUSIONS: The applicant’s contentions were noted. However, her physical profile at the time of her separation was 111111. She elected to waive a separation physical examination on 15 April 1994. There is no medical evidence of record that shows the applicant had any medical condition prior to her release from active duty on 16 May 1994. There is also no evidence of record to show she was ever medically unfit to perform her duties. Therefore, there is insufficient evidence to show the applicant was eligible for physical disability processing and there is no basis for a medical discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___xx___ __xx____ ____xx__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _ _______ xxxx____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080007237 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080007237 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1