RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 September 2004
      DOCKET NUMBER:  AR2004101189


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Luther L. Santiful            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Marla J. Troup                |     |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 discharge for not meeting
medical fitness standards be voided.

2.  The applicant states that if, contrary to what his Medical Evaluation
Board (MEB) proceedings stated, he was never an unassigned trainee, then
the decision of the MEB would not apply to him.  Therefore, there could be
doubt about his actually being discharged from military service because his
discharge was based on the fraudulent information given to the MEB.

3.  The applicant further states that in 1967 he was classified 4F by the
Selective Service System (SSS) because he was being treated for epilepsy
and asthma.  Because he believed 4F meant he was not qualified for military
service, he did what the recruiter suggested after asking him a question
about the occupation of medical radiology in the military – he took the
written test for the service "just in case."  He was tricked into military
service.  Because of the Army's egregious error, he was hospitalized at
Fort Sill, OK and then afterward had to prove that he was sick prior to
entering service in order to get discharged.  From day one of his active
duty he expressed the fact that he should not have been in the Army because
he was 4F.

4.  The applicant asks several questions:  (1) Why did someone change his
date of birth at the induction center.  Was it to nullify his claim of not
belonging in the Army because he was classified 4F; (2) Why did his
Enlisted Evaluation Report (EER) on 15 August 1979 state he had a profile
for asthma if his asthma was stable.  (3) Why did his 15 August 1979 EER
state his military occupational specialty (MOS) was 54E but he became a
trainee 09B00 on his 10 September 1979 MEB proceedings; (4) Would the MEB
have come to the same decision had they known he was not a trainee; (5) Why
were his medical and personnel records from Fort Dix, NJ and Aberdeen
Proving Ground, MD removed.  Was it to cover up the fact his condition was
aggravated by his military service.  He also notes that it is obvious that
someone used whiteout on his dental records to add "E4" and "HQ 1/17" in
section II.

5.  The applicant provides a letter from his Member of Congress dated 9
January 2002; an extract from the SSS's Internet site; his DD Form 214
(Report of Separation from Active Duty); his DD Form 215 (Correction to DD
Form 214, Certificate of Release or Discharge from Active Duty); a copy of
a letter from the SSS dated 9 February 2001 with a copy of his Registrant
Classification Record; a Department of Veterans Affairs (VA) Rating
Decision dated 13 June 2001; the applicant's disagreement with the 13 June
2001 VA Rating Decision; a VA Rating Decision dated 15 August 2002; a
Social Security Administration Decision dated 20 September 2002; copies of
his civilian (pre-enlistment) medical records; extracts from his military
dental records; copies of two pages of his DA Form 2-1 (Personnel
Qualification Records); the first page of a DA Form 3947 (Medical Board
Proceedings); and a Narrative Summary transcribed 30 March 1979.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 September 1979.  The application submitted in this case was
received in this office 12 January 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’s military records are not available to the Board.  This
case is being considered using reconstructed records which primarily
consist of the documents provided by the applicant, part of his enlistment
contract, and information taken from the consideration of his case for
different, but related, relief on 30 July 2002 (docket number
AR2002072964).

4.  The applicant's enlistment contract shows he was born on 2 January
1949.  Civilian medical records show he had been treated for seizures for a
number of years beginning in 1961 and for asthma since age 3.

5.  On 5 January 1967, the applicant registered with the SSS for the draft.
 He was classified 4F (not qualified for military service).

6.  The extract from the SSS Internet site indicates that men born from 29
March 1957 to 31 December 1959 were not required to register for the draft
because registration was suspended for several years in the late 1970s.

7.  On 2 February 1978, the applicant enlisted in the Regular Army.  In
item 16 of the DD Form 4 (Enlistment or Reenlistment Agreement – Armed
Forces of the United States), the applicant certified that he read the
agreement carefully, that it was fully explained to him, and that he
understood it and the conditions under which he was enlisting.  His
enlistment physical examination is not available.  Only page 1 of his DD
Form 1966 (Application for Enlistment - Armed Forces of the United States)
is available.
8.  The applicant completed basic training and advanced individual training
and was awarded MOS 54E (Chemical Operations Specialist).  He was assigned
to Headquarters and Headquarters Battery, 1st Battalion, 17th Field
Artillery, Fort Sill, OK on 18 June 1978.

9.  On 25 February 1979, the applicant was hospitalized for an asthma
attack.  The Narrative Summary provided by the applicant states that he was
in extreme distress when admitted and showed no drastic response until
about 24 to           36 hours after treatment.  He was continued on
treatment and made a drastic improvement about the third hospital day with
minimal to an absent wheezing and decreased coughing.  His hospital course
was described as uncomplicated.  He was discharged to his unit on 2 March
1979.

10.  On 2 July 1979, the applicant was promoted to Specialist Four, E-4.

11.  A DA Form 3947 dated 10 September 1979 shows the applicant was found
to be unfit for duty based on asthma and a seizure disorder, both
conditions EPTS (existed prior to service) and neither condition service
aggravated.  This document erroneously showed his military status as
"Trainee 09B00."  This document correctly showed his name, social security
number, rank, component, and unit.  He apparently elected not to undergo a
Physical Evaluation Board (PEB) and instead requested discharge for
physical disability.

12.  The applicant's request for discharge was approved and on 26 September
1979 he was discharged under the provisions of Army Regulation 635-40,
chapter 5 with a separation designator code of KFN (voluntary discharge for
physical disability EPTS – medical board) after completing 1 year, 7
months, and 25 days of creditable active service.  His DD Form 214
erroneously showed his date of birth as 2 January 1959 but correctly
reflected that he held MOS 54E (i.e., that he was not a trainee).

13.  The VA Rating Decision dated 13 June 2001 found that the applicant's
bronchial asthma was not service connected.  The Reasons for Decision
indicate that his bronchial asthma existed prior to service, "with the
veteran indicating he had never had asthma upon service entry."  The
Reasons for Decision also noted that the post-service evidence he presented
to the VA showed him to have had additional asthma attacks more than 8
years after he separated.  The Reasons for Decision also noted that his
service medical records showed that his asthma was considered to be stable
by the time he was separated.

14.  The applicant disagreed with the VA's decision, noting that his
military history showed that his condition, which had been absent for 21
years, was aggravated by his military service.
15.  By letter dated 20 September 2002, the Social Security Administration
notified the applicant that his claim for Disability Insurance Benefits due
to chronic pulmonary insufficiency and asthma was approved.  The letter
noted that the record showed the applicant had a history of steady and
frequent treatment for asthma attacks since 1979, including frequent
treatment in 1997 while he was living in Korea and frequent treatment in
2001 and 2002.

16.  On 30 July 2002, the ABCMR considered the applicant's request to
correct his records to show his correct date of birth, to show that he
completed basic training and advanced individual training, that
"fraudulent" changes made to his health and dental records be corrected;
that the trainee status indicated on his medical board report be corrected,
and that the reason for his consultation be added to his consultation
sheet.

17.  In paragraph 11 of the Proceedings, it was noted that the applicant's
DD Form 214 indicated he was born in 1959, "which is an incorrect year of
birth that does not match the 1949 year of birth contained in his
enlistment documents and other documents prepared during his military
service."  The ABCMR recommended correction of his DD Form 214 to correct
the year of his birth; noted that the administrative error on the DA Form
3947 concerning his "trainee" status had no adverse impact on his medical
processing and that his DA Form  2-1 clearly documented that he was not a
trainee; and could not determine what he meant by "fraudulent" changes
being made to his medical records.  His DD Form 214 was corrected in
accordance with the Board's recommendation.

18.  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.

19.  Army Regulation 635-40, paragraph 4-19e states that a PEB may decide
that a soldier's physical defect existed prior to service.  If so, the
board must further consider whether military service aggravated the
unfitting defect.  If the soldier's military service makes the condition
worse or hastens the natural progression of the condition beyond the normal
or anticipated rate had he or she not been exposed to such service, a
finding of aggravation just be considered.

20.  Army Regulation 635-40, chapter 5 provides for the separation of an
enlisted soldier for non-service aggravated EPTS conditions when the
soldier requests waiver of PEB evaluation.  The soldier must be eligible
for referral into the disability system, must not meet medical retention
standards as determined by the MEB, the disqualifying defect or condition
must have existed prior to entry on the current period of duty and not been
aggravated by such duty; the soldier is mentally competent and knowledge of
information about his medical condition would not be harmful to his well-
being; and further hospitalization is not required. After being advised of
the right to a full and fair hearing, the soldier must still desire to
waive PEB action and he must be advised that a PEB evaluation is required
for receipt of Army disability benefits but waiver of the PEB would not
prevent applying for VA benefits.

21.  Army Regulation 40-501 governs medical fitness standards for
induction, enlistment, retention, and separation.  Paragraph 2-23 states
that asthma is a cause for rejection for induction or enlistment.
Paragraph 1-6 states that an examinee initially reported as medically
unacceptable by reason of medical unfitness may request a waiver of the
medical fitness standards.  Paragraph 3-27 states that asthma is a cause
for referral to an MEB.

22.  Army Regulation 40-501, paragraph 2-26 states that all forms of
generalized or partial epilepsy that have persisted beyond the age of 5
(unless the applicant has been free of seizures for a period of 5 years
immediately preceding examination for military service while taking no
medication for seizure control and has a normal electroencephalogram) is a
cause for rejection.  All cases will be referred to the Office of The
Surgeon General Consultant in Neurology for a determination of fitness.
Paragraph 3-30 states that, in general epilepsy is disqualifying for
retention unless the soldier can be maintained free of clinical seizures of
all types by nontoxic doses of medications.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, the preponderance of the
evidence shows that the MEB proceedings did in fact apply to him.  The only
administrative error on the DA Form 3947 dated 10 September 1979 was the
erroneous showing of his military status as "Trainee 09B00."  That document
correctly showed his name, social security number, rank, component, and
unit.  It listed the same medical conditions as EPTS that he agreed he was
treated for as a child.  He did not contend in his previous application to
the Board that the proceedings did not apply to him.

2.  The decision to discharge the applicant was based on his medical
conditions, not his military status.  While asthma is a reason for
rejection for induction or enlistment, it is possible for a waiver to be
requested and granted.  Asthma is also a reason for referral to an MEB.
The applicant was so referred to an MEB when he had an asthma attack a year
after he enlisted.  It appears he requested a waiver of a PEB and
discharge, and he was discharged as he requested.  He provides no evidence
to show his discharge was based on fraudulent information.

3.  It is noted that the applicant was classified 4F by the SSS in 1967
because he was being treated for epilepsy and asthma.  However, it is also
noted that the applicant stated that he asked a recruiter a question about
the occupation of medical radiology in the military.  Therefore, it is
presumed he was actively seeking entry into the Army.  He voluntarily
enlisted in the Army; he was not inducted into the Army.  In item 16 of his
DD Form 4, he certified that he read the enlistment agreement carefully,
that it was fully explained to him, and that he understood it and the
conditions under which he was enlisting.

4.  The applicant's full enlistment contract and his enlistment physical
examination are not available; however, it is noted that the VA Rating
Decision dated 13 June 2001 stated in part, "with the veteran indicating he
had never had asthma upon service entry."  Whether or not the applicant
deliberately misled his recruiter or whether he requested and obtained a
waiver for his medical conditions cannot be determined.  Nevertheless, the
Army did not make an "egregious error" or "trick" him into joining the
Army.  He voluntarily enlisted.

5.  There is no evidence of record and the applicant provides none to show
his date of birth was changed at the "induction center."  First, in 1978
there was no draft.  It was an all-volunteer Army and the applicant
voluntarily enlisted.  Second, the available enlistment document correctly
shows his date of birth as   2 January 1949.  It appears that all his other
records showed his date of birth as 2 January 1949.  It appears the only
document that erroneously showed his date of birth as 2 January 1959 was
his DD Form 214.  That being the case, it appears the error on his DD Form
214 was merely a typographical error.

6.  The applicant's August 1979 EER is not available.  Nevertheless, even
if his asthma was stable, he still had asthma.  It appears he was given a
physical profile for asthma in an attempt not to trigger further attacks.

7.  The applicant's EER would have been prepared by his rating officials
and/or the unit/installation personnel office who would have known his
correct MOS and military status.  The DA Form 3947 would have been prepared
by medical/hospital officials who would have routinely processed both
permanent party personnel and trainees through the physical disability
system and who merely made an administrative error in not double checking
his status.  The MEB would have made the same decision had they known he
was not a trainee for the reason noted in paragraph 2, DISCUSSION AND
CONCLUSIONS, above.

8.  It cannot be determined to what the applicant is referring when he
questions why "were his medical and personnel records from Fort Dix, NJ and
Aberdeen Proving Ground, MD removed."  It cannot be determined for a fact
from the copies of the dental records provided by him that "someone used
whiteout on his dental records to add "E4" and "HQ 1/17" in section II."
However, it is a fact that he was an E4 and he was assigned to Headquarters
(and Headquarters) Battery, 1st Battalion, 17th Field Artillery.
Therefore, it does not appear that an error or injustice occurred when or
if this type of correction was made to his dental records.

9.  In addition, there is no evidence to show that the applicant's military
service aggravated his asthma.  He contended that his asthma had been
absent for      21 years when he enlisted.  It appears he successfully
served one year in the Army, to include completing a physically strenuous
basic training, before he had an asthma attack.  The VA Rating Decision
dated 13 June 2001 noted that the post-service evidence he presented to the
VA showed him to not have had additional asthma attacks until more than 8
years after he separated from the Army.  While the Social Security
Administration documentation he provided indicated he had frequent attacks
since his separation in 1979, the date first mention for treatment was
1997, 18 years after his separation.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 September 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   25 September 1982.  However, 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

__lls___  __jtm___  __mjt___  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.




            __Luther L. Santiful__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101189                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040916                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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