IN THE CASE OF: BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20140021338 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 correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged for medical reasons vice unsatisfactory performance. 2. The applicant states: a. He was physically unable to satisfactorily complete the run portion of the Army Physical Fitness Test (APFT) due to documented injuries. b. He was a practicing attorney in Egypt and was in good health. On 4 August 2009, he joined the U. S. Army Reserve (USAR) during a time of war, knowing that his skills as an Arabic translator would likely result in him being placed in harm’s way. c. He was injured during basic training, and due to his documented injuries, he was unable to successfully complete the running portion of the APFT. d. From 7 to 10 November 2009, he was treated for an infection to his left thigh and placed on convalescence leave until 10 December 2009 (extended until 5 January 2010). e. He graduated from basic training and was transferred for follow-on training at Fort Huachuca, AZ. In March 2010, he was assigned to Bravo Company, 309th Military Intelligence Battalion. f. On 30 April 2010, his hip [left thigh area] worsened, so he sought medical treatment at a military medical facility. g. In May 2010, he fell from a five ton truck and injured his back during training. His doctor referred him to physical therapy and gave him painkillers. He was also restricted from running or doing sit-ups until 30 May 2010. h. On 11 May 2010, while he was still receiving therapy, he took the APFT. He passed the sit-ups and push-ups portion but failed the run portion of the APFT. i. On 25 May 2010, during pool therapy, the pain was so intense that he could not complete it. j. On 2 June 2010, the medical facility extended his restricted physical profile to 2 July 2010; however, on 7 June 2010, he was discharged from physical therapy in order to participate in a 10-day field training exercise (FTX). k. On 8 June 2010, he was ordered to participate in the APFT despite his continued restricted physical profile. l. On 21 and 22 June 2010, he was ordered to participate in the APFT again despite his continued restricted physical profile. m. On 27 June 2010, he visited the emergency room for excessive hip pain due to a left hip abscess. n. On 9 July 2010, medical extended his restricted physical profile to 11 August 2010; however, on 20 July 2010, he was ordered to participate in another APFT despite his continued physical profile, and he failed the run portion of the test. o. On 26 July 2010, he returned to the clinic for treatment but was not scheduled for an MRI examination until 18 August 2010. p. On 10 August 2010, he was ordered to take another APFT and failed the run portion due to hip pain. It was then that he was counseled on being separated from the USAR due to unsatisfactory performance. q. On 24 August 2010, he was unable to satisfactorily complete the APFT and recommended for separation under Army Regulation 635-200, chapter 13. r. On 5 September 2010, medical extended his restricted physical profile to 11 November 2010. s. He was told by his defense counsel to accept an honorable discharge for “unsatisfactory performance” and then seek a status change through the Army Board for Correction of Records after he was separated. 3. The applicant provides a copy of his: * self-authored statement * medical record * line of duty report * physical profile * service record * Department of Veterans Affairs (VA) record 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. 3. On 4 August 2009, the applicant enlisted in the USAR. After initial training, he attended advanced individual training (AIT). 4. While the applicant was attending AIT, he received a temporary physical profile for the APFT that shows no running, sit-ups, walking or swimming; however, he was allowed to participate in biking and push-ups for the period 30 February 2010 to 30 May 2010. 5. A DA Form 705 (Army Physical Fitness Test Scorecard), which shows the applicant failed a diagnostic APFT on 11 May 2010. 6. The applicant received another temporary physical profile for the APFT that shows no running, sit-ups, walking or swimming; however, he was allowed to participate in biking and push-ups for the period of 2 May 2010 to 2 July 2010. 7. The record shows he: * was waived from the 8 June 2010 APFT * failed the APFT on 21 June 2010 * failed the APFT on 22 June 2010 8. The applicant received a third temporary physical profile for the APFT that shows no running, sit-ups, walking or swimming; however, he was allowed to participate in biking and push-ups for the period of 11 May 2010 to 11 August 2010. 9. The record shows he: * failed the APFT on 20 July 2010 * failed the APFT on 10 August 2010 10. On 10 August 2010, the applicant was formally counseled for his failure of the APFT. He was advised of his responsibility to pass the APFT and that the company commander could authorize a 7-day period for him to pass a record APFT and that he would have another chance to pass an APFT on 17 August 2010. 11. The applicant received a fourth temporary physical profile for the APFT that shows no running or swimming; however, he was allowed to participate in walking, biking, sit-up and push-ups for the period of 11 August 2010 to 11 November 2010. 12. The record shows he: * failed the APFT on 24 August 2010 * failed the APFT on 13 September 2010 13. On 6 October 2010, the applicant received MEDCOM Form 4038 (Report of Behavioral Health Evaluation) which shows a normal mental status evaluation. 14. On 10 November 2010, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 (Personnel Separations) due to lacking the motivation to pass the APFT. The commander advised him that he was recommending that he receive an honorable discharge (HD) and advised him of his rights. 15. The separation authority approved the separation and stated a rehabilitative transfer would serve no useful purpose or produce a quality Soldier and in accordance with Army Regulation 635 200, paragraph 1-6, rehabilitative transfer was waived. He was to be discharged and furnished an HD Certificate. 16. On 22 November 2010, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 for unsatisfactory performance. He had completed 1 year, 3 months, and 19 days of active service that was characterized as honorable. 17. The applicant’s DD Form 214 shows in: * item 25 (Separation Authority) - “AR 635-200, CHAP 13” (Army Regulation 635-200, Chapter 13) * item 26 (Separation Code) - “JHJ” * Item 28 (Narrative Reason for Separation) - “Unsatisfactory Performance” 18. Field Manual 21-20 (Physical Fitness Training) states that once a temporary profile has been lifted, the Soldier must be given twice the time of the profile to train for the APFT. 19. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career. 20. Army Regulation 635-200, then in effect, set forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, then in effect, provided for the separation of personnel when it was determined that they were unqualified for further military service because of unsatisfactory performance. Paragraph 13-2 of this regulation provided the criteria under which commanders would separate a Soldier for unsatisfactory performance. Paragraph 13-2e of this regulation provided that initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT, unless the responsible command chooses to impose a bar to reenlistment. 21. Army Regulation 635-5-1, then in effect, prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. Under the regulatory authority for Army Regulation 635-200, paragraph 13-2e the SPD to be assigned is JFT and the narrative reason to be entered is “Physical Standards.” DISCUSSION AND CONCLUSIONS: 1. There is no evidence of record and the applicant has not submitted any evidence that he had a permanent medical condition which would have warranted him being considered by a Medical Evaluation Board (MEB). Without an MEB, there would have been no basis for referring his to a PEB. Without a PEB, the applicant could not have been discharged for medical reasons. 2. Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. The applicant could have taken the swimming or bike test in order to pass his APFT. He has provided no evidence to show his command failed to allow him to participate in the alternative events. 3. However, in view of the sole reason for the applicant being processed for discharge, failure to pass his APFT, the separation authority for his discharge is Chapter 13, paragraph 13-2e of Army Regulation 635-200. Therefore, it is appropriate to change Item 25 of the applicant’s DD Form 214 to read Army Regulation 635-200, Chapter 13-2e. 4. Under the regulatory authority Army Regulation 635-200, paragraph 13-2e, the SPD to be assigned is JFT and the narrative reason is “Physical Standards.” Therefore, it is appropriate to change Item 26 to read JFT and Item 28 to read Physical Standards. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X___ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the following changes to his DD Form 214, with an effective date of 22 November 2010: a. Amend Item 25 to read Army Regulation 635-200, Chapter 13-2e; b. Amend Item 26 to read JFT instead of JHJ; and c. Amend Item 28 to read “Physical Standards.” 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a medical discharge. ___________X___________ 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) AR20140021338 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS