RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 August 2005
      DOCKET NUMBER:  AR20040011227


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge be
upgraded to honorable or a medical discharge.  He also requests that his
narrative reason for separation be changed.

2.  The applicant states, in effect, he had a medical problem (asthma) when
he was discharged and "they" would not listen to him.  He states the
Department of Veterans Affairs (DVA) determined his asthma is service
connected.  He contends his asthma still requires daily prescription
medication and sometimes prednisone to regain control, occasional emergency
room visits, and he is rated 100 percent disabled by the DVA.  He points
out that his enlistment physical examination indicates "no previous
treatment for asthma" and he submitted a letter from his civilian doctor
that states he had no previous treatment for asthma. He states he did not
know the difference between hay fever and asthma when he checked the box
for these conditions during a prior Army physical examination.  He also
points out his high school transcript shows his health record is blank, he
was issued a permanent profile for asthma in the Army, his doctor's letter
states that his health was excellent during high school, he did not have
asthma or a history of childhood asthma, and he passed a pilot physical
examination and was issued a pilot medical certificate to fly airplanes.

3.  The applicant provides a letter, dated 24 September 2003, from the DVA;
a Standard Form 88 (Report of Medical Examination), dated 7 May 1970; his
high school transcript; a DA Form 3349 (Medical Condition - Physical
Profile Record); a letter from the Chief, Pulmonary and Infectious Disease
Service; and a letter, dated 10 March 1999, from his civilian doctor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 March 1973.  The application submitted in this case is dated
17 December 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 10 June 1971 for a period of 3 years.  He
successfully completed basic training and advanced individual training in
military occupational specialty 91A (medical corpsman).

4.  On 11 April 1972, the applicant was issued a permanent profile of "3"
under physical capacity or stamina for asthma.  He was found to be
medically qualified for duty with permanent limitations (no crawling,
stooping, running, jumping, prolonged standing or marching, and no
strenuous physical activity).

5.  On 28 July 1972, nonjudicial punishment was imposed against the
applicant for failure to repair (two specifications).  His punishment
consisted of a forfeiture of pay and a reduction to E-2 (suspended).

6.  On 16 October 1972, the applicant underwent a psychiatric evaluation.
This medical record indicates the applicant applied for separation from the
military under the provisions of Army Regulation 40-501 due to asthma.
This medical record also states, in pertinent part, "He claimed his
asthmatic attacks have increased since he entered the Army."  He was
diagnosed with inadequate personality, chronic, moderate, manifested by
poor responses to social demands and inadaptability to a productive
military life.  The psychiatrist determined that the applicant met the
retention standards prescribed in Chapter 3, Army Regulation 40-501 and
there were no psychiatric disease or defect which warranted disposition
through medical channels.  The applicant was cleared for any administrative
action deemed appropriate by his command.

7.  On 15 November 1972, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 24 October 1972 to
4 November 1972.  His punishment consisted of a forfeiture of pay and extra
duty.

8.  Records show that on 15 January 1973 the applicant was reevaluated by
medical authorities for the clinical status of his asthma.  A document
prepared by the Chief, Pulmonary and Infectious Disease Service apparently
in response to a Congressional Inquiry states, in pertinent part, "He
believes that his asthma, although EPTS [existed prior to service], has
been aggravated by active duty service and apparently knows little about
the natural history of childhood onset asthma" and "All indications, review
of clinical records, previous and repeated present physical examination
point to mild bronchial asthma which is controlled, except for sporadic
attacks, on the usual medications in adequate dosage.  No adrenal steroids
are necessary for control of symptoms.  He therefore qualifies for
continued active duty or separation under the appropriate profile - as
previously given.  The condition existed prior to entering the service, and
in view of the natural history of asthma, and its present mild
manifestations, it is problematical whether service aggravation in fact has
occurred."

9.  On 30 January 1973, nonjudicial punishment was imposed against the
applicant for being AWOL from 22 November 1972 to 9 January 1973.  His
punishment consisted of a reduction to E-1, a forfeiture of pay, and extra
duty.

10.  Between 11 January 1972 and 7 February 1973, the applicant was
counseled on numerous occasions for various infractions which included
failures to repair, unkempt and shabby appearance, indebtedness, and being
AWOL.

11.  On 12 February 1973, the applicant underwent a psychiatric evaluation.
 He was diagnosed with immature personality.  The psychiatrist determined
that the applicant met the retention standards prescribed in Chapter 3,
Army Regulation 40-501 and there were no psychiatric disease or defect
which warranted disposition through medical channels.  The applicant was
cleared for any administrative action deemed appropriate by his command.

12.  On 16 February 1973, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-200, chapter 13, for
unsuitability due to character and behavior disorders.

13.  On 16 February 1973, the unit commander initiated action to separate
the applicant under the provisions of Army Regulation 635-200, chapter 13,
paragraph 13-5b(2), for unsuitability due to character and behavior
disorders.  He based his recommendation for separation on the applicant's
character and behavior disorder and his record of disciplinary actions.


14.  There is no medical examination contained in the available records.
However, the unit commander's recommendation, dated 16 February 1973, shows
a Standard Form 88 and a Standard Form 93 (Report of Medical History) were
provided as enclosures to his recommendation.

15.  On 16 February 1973, the applicant consulted with counsel, waived
consideration of his case by a board of officers, waived a personal
appearance, and elected not to submit a statement on his own behalf.  He
also acknowledged that he understood he might expect to encounter
substantial prejudice in civilian life in the event a general discharge was
issued to him.

16.  On 16 March 1973, the separation authority approved the recommendation
for separation and directed the issuance of a general discharge.

17.  Accordingly, the applicant was discharged on 17 March 1973 with a
general discharge under the provisions of Army Regulation 635-200, chapter
13, for unsuitability due to character and behavior disorders.  He had
served 1 year, 7 months and 21 days of total active service with 47 days of
lost time due to AWOL.  His Separation Program Number (SPN) was 264.

18.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel for unfitness or
unsuitability.  Chapter 13, paragraph 13-5b(2) of Army Regulation 635-200
provides for discharge due to unsuitability due to character and behavior
disorders.  The regulation states that when separation for unsuitability
was warranted an honorable or general discharge was issued as warranted by
his military record.

20.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

21.  Army Regulation 635-5-1 prescribes the specific authorities
(regulatory, statutory, or other directives), the reasons for the
separation of members from active military service, and the separation
program numbers to be used for these
stated reasons.  The regulation, in effect at the time, stated the reason
for discharge based on SPN “264” was “Unsuitability - character and
behavior disorders.”

22.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3,
provides the standards for medical fitness for retention and separation,
including retirement.  Chapter 7 of this regulation 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.  Numerical designators "2" and "3"
indicate that an individual has a medical condition or physical defect
which requires certain restrictions in assignment within which the
individual is physically capable of performing military duty.  The
individual should receive assignments commensurate with his or her
functional capacity.

23.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 In pertinent part, it states that the mere presence of an impairment does
not, of itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
Soldier reasonably may be expected to perform because of his or her office,
grade, rank, or rating.

24.  The National Institutes of Health, National Center for Biotechnology
Information internet site states that asthma affects more than 5 percent of
this country's population.  It is a chronic inflammatory disorder of the
airways characterized by coughing, shortness of breath, and chest
tightness.  A variety of "triggers" may initiate or worsen an asthma
attack.  Asthma is what is known as a "complex" heritable disease.  This
means that there are a number of genes that contribute toward a person's
susceptibility to a disease.

25.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award
compensation for a medical condition which was incurred in or aggravated by
active military service.  The DVA, however, is not required by law to
determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's contention that he had
a medical problem (asthma) when he was discharged.  Medical evidence of
record shows competent medical authorities determined that the applicant's
condition (asthma) existed prior to entering the service.  This medical
determination is supported by the applicant's own admission ("He claimed
his asthmatic attacks have increased since he entered the Army.") on 16
October 1972.  It is noted that government medical authorities have
identified asthma as being an inheritable disease.

2.  Although the applicant received a permanent profile of "3" under
physical capacity or stamina for asthma, he was found to be medically
qualified for duty with permanent limitations.  Records show that a report
of medical examination was submitted in the applicant's discharge packet.
In the absence of evidence to the contrary, it is reasonable to presume
that the applicant was found qualified for separation.  Therefore, there is
no basis for granting the applicant's request for a medical discharge.

3.  The rating action by the DVA does not necessarily demonstrate an error
or injustice on the part of the Army.  The DVA, operating under its own
policies and regulations, assigns disability ratings as it sees fit.  The
DVA is not required by law to determine medical unfitness for further
military service in awarding a disability rating, only that a medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.

4.  The applicant’s record of service included numerous adverse counseling
statements, three nonjudicial punishments and 47 days of lost time.  As a
result, his record of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, the
applicant's record of service is insufficiently meritorious to warrant an
honorable discharge.

5.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

6.  The type discharge directed and the reasons for separation are
appropriate considering all the facts of the case.

7.  The narrative reason for separation used in the applicant’s case is
correct and was applied in accordance with the applicable regulations.

8.  Records show the applicant should have discovered the alleged injustice
now under consideration on 17 March 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 16
March 1976.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

BE_____  KW_____  PM______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Barbara Ellis__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011227                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19730317                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |108.0000                                |
|3.                      |110.0200                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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