IN THE CASE OF: BOARD DATE: 20 January 2011 DOCKET NUMBER: AR20100016159 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 of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 1999 to show he was medically retired. 2. The applicant states he was discharged for a heart condition and asthma that were service-connected. He states he was referred to a medical evaluation board (MEBD) for these two conditions, but never went before an MEBD. He states he still suffers from these two medical conditions. 3. The applicant provides excerpts of his service medical records and civilian medical records. 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. On 26 June 1987, the applicant enlisted in the U.S Army Reserve (USAR) Delayed Entry Program (DEP). He was discharged from the USAR DEP on 14 October 1987 and he enlisted in the Regular Army on 15 October 1987 for a period of 2-years. He completed his initial training and he was awarded military occupational specialty (MOS) 19K (M-1 Armored Crewman). 3. On 13 October 1989, he was honorably released from active duty by reason of completion of required service and he was transferred to the USAR Control Group (Annual Training) to complete his remaining military service obligation. 4. On 18 March 1994, as a member of the USAR, the applicant underwent a quadrennial medical examination. He was found fit for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness) with no annotations or diagnoses for a heart condition or asthma. 5. In preparation for his second enlistment in the Regular Army, the applicant was medically evaluated on 23 October 1996. He was found medically qualified for entrance into the Regular Army with no defects annotated on his physical evaluation documents. 6. The applicant subsequently enlisted in the Regular Army on 21 November 1996 in the rank/grade of specialist (SPC)/E-4 for a 4-year period. He received training and he was awarded MOS 88N (Traffic Management Coordinator). 7. The copies of service medical records provided by the applicant show he started to receive treatment for breathing problems in August 1997. The initial assessment was exercise-induced asthma. A second assessment shows possible hyperventricular syndrome or exercise-induced asthma. His electrocardiogram (EKG) was abnormal. He was diagnosed with asthma. 8. On 16 July 1998, a computerized interpretation report from an Army medical center shows the applicant had mild restrictive airway disease (decrease in the ability to expand the lungs or breathe-in). 9. On 22 July 1998, his medical service records show he received treatment for asthma. The doctor stated, “MEBD MAY NEED TO BE DONE . . . DEPENDS ON COMMAND/MOS . . . SHOULD BE INITIATED THROUGH TROOP COMMAND.” 10. The applicant’s complete service medical records are not available for review. 11. The complete facts and circumstances of the applicant’s discharge are not available. The applicant’s personnel service record contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, paragraph 6-3a by reason of hardship on 30 April 1999. He had served 2 years, 5 months, and 10 days of his 4-year enlistment contract. 12. There is no evidence in the applicant's military service records showing he was medically disqualified and could not perform the duties of his rank and MOS. 13. As evidence to support his application, the applicant provided a copy of an EKG that shows, on 4 February 2010, his EKG was abnormal and that his diagnosis was unconfirmed. The EKG did show borderline left atrial abnormality and left anterior fascicular blockage. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army. In pertinent part, is provides for the discharge of Soldier's who have dependency or hardship issues that prevent them from performing their duties. Dependency exists when a death or disability of a member of a Soldier’s (or spouse’s) immediate family causes that family member to rely upon the Soldier for principal care or support. The criteria for discharge for hardship or dependency follows: * the hardship or dependency conditions must have arisen or have been aggravated to an excessive degree since the Soldier’s entrance onto active duty * the hardship or dependency conditions are not of a temporary nature * every reasonable effort to alleviate the dependency or hardship conditions went without success * separation is the only readily available means of eliminating or materially alleviating the dependency or hardship 15. Army Regulation 40-501 provides for the standards of medical fitness for retention, separation and retirement of Soldiers with medical conditions. There are specific criteria that state asthma is a cause for referral to an MEBD. Soldiers who are diagnosed as having asthma may be placed on a temporary profile under the "P" factor of the physical profile for up to 12 months trial of duty, when medically advisable. If at the end of that period the Soldier is unable to perform all military training and duty, the Soldier will be referred to an MEBD and potentially a physical evaluation board (PEB). Soldiers with chronic asthma can meet retention standards with a permanent profile, if the Soldier requires regular medications and can perform all military training and duties including the 2-mile run within time standards. 16. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides for the medical treatment facility commander with the primary care responsibility to evaluate those referred to him and will, if it appears as though the Soldier is not medically qualified to perform duty or fails to meet retention criteria, refer the Soldier to a MEBD. Those Soldiers who do not meet medical retention standards based on the criteria in Army Regulation 40-501 will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was treated for breathing problems and diagnosed with asthma in August 1997. The evidence does not support the applicant's contention that he was actually referred to an MEBD. In fact, evidence shows he requested an administrative discharge from the service due to an undefined hardship or dependency status of a family member. With no referral to an MEBD, there can be no referral to a PEB. With no PEB, there is insufficient evidence to warrant consideration of a medical retirement. 2. 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 that requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF __X____ ___X____ __X_____ GRANT FORMAL HEARING ________ ________ ________ 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. _______ _ 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) AR20100016159 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016159 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1