RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 13 February 2007 
	DOCKET NUMBER:  AR20060009493 


	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



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, a change in the narrative reason in Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states, in effect, Item 28 should read "Entry Level Separation/Trainee Discharge (Performance/Conduct).”  Item 28, of his DD Form 214, reads, "Failure to Meet Procurement Medical Fitness Standards."  He did not get out for medical reasons, it was for physical training failure.  He had no way of knowing until he tried to enlist back in the military.  The Army and the Oklahoma Army National Guard have tried to get information from St. Louis and no records were found.  

3.  The applicant provides copies of his DD Form 214 and a memorandum from the Army National Guard Affairs Office, St. Louis, Missouri, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 December 1995, the date of his separation from active duty.  The application submitted in this case is dated 27 June 2006.

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 limitations 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 show he enlisted in the Regular Army, in pay grade E-2, on 19 June 1995, for 4 years, with a medical waiver.  He completed basic combat training on 11 August 1995.  

4.  On 27 September 1995, an Entrance Physical Standards Board (EPSB) convened and considered the applicant's history of Asthma.  The EPSB considered that the applicant was diagnosed with asthma as a child.  He had multiple 

hospitalizations as a child for asthma prior to 15 years of age.  He was given a waiver to enter the Army.  His shortness of breath and wheezing returned while in basic training.  His proposed military occupational specialty (MOS) was 63H, Track Vehicle Repairer.  He was seen in the medical center at Fort Sill and treated with Proventil MDI with occasional relief.  He continued to develop shortness of breach during physical training runs.  He had been seen at the medical center, Aberdeen Proving Ground, and treated with Azmacort.  Physical examination revealed his lungs clear to auscultation, heart regular rate and rhythm, and mouth without lesions.  The EPSB diagnosed the Asthma well controlled.  The EPSB found the applicant did not meet Army fitness standards and medically cleared and recommended him for administrative separation in accordance with Army Regulation 40-501, as he was unfit for duty.

5.  On 17 November 1995, the applicant's commander recommended his separation under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-11, with an honorable discharge and no transfer to the Individual Ready Reserve.

6.  On 29 November 1995, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-11, with an honorable discharge and no transfer to the Individual Ready Reserve.  

7.  He was honorably discharged from active duty, in pay grade E-2, on 7 December 1995, under the provisions of Army Regulation 635-200, paragraph 5-11, Failure to Meet Procurement Medical Fitness Standards.  His signature is annotated on the DD Form 214.  He was assigned reentry (RE) code RE-3.

8.  The applicant submits a copy of a memorandum, wherein the Army National Guard Affairs Office, stated that a search of the National Archives and Records Administration and the Soldier Management System, St. Louis, for the records requested was conducted.  Unfortunately no records were found.  The memorandum listed organizations that may have the records that were being searched for.  

9.  Army Regulation 40-501, Chapter 3, governs the medical fitness standards for retention and separation, including retirement. 

10.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-11 establishes policy and prescribes procedures for separating members who did not meet procurement medical 
fitness standards.  It specifies that Soldiers who became medically disqualified under these standards prior to entry on active duty or active duty for training for initial entry training, may be separated.  Such conditions must be discovered during the first 6 months of active duty.  Such findings will result in an EPSB.  This board must also be convened within the Soldier's first 6 months of active duty.  The separation authority determines, after considering the proceedings of an EPSB, that the Soldier's disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his/her period of enlistment in the MOS for which he/she is being trained or in another MOS based on the Soldier's medical condition.  The Soldier will be separated within 72 hours following approval by the separation authority.

11.  Army Regulation 635-200, Chapter 11, paragraph 11-2, provided for the separation of a Soldier in entry level status on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment, or minor disciplinary infractions.  This applies to enlisted Soldiers who are in entry-level status and before the date of the initiation of separation action, have completed no more than 180 days (3 months) of creditable continuous active duty or active duty for training.

12.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

13.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change to the narrative reason for his separation.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant enlisted on 19 June 1995.  On 27 September 1995, an EPSB found him unfit for duty and medically cleared him for separation under the provisions of Army Regulation 40-501, not medically qualified under procurement 
medical fitness standards.  The applicant's commander recommended his separation for failure to meet procurement medical fitness standards and the recommendation was approved on 29 November 1995, under the provisions of Army Regulation 635-200, paragraph 5-11.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

3.  The applicant's contentions have been noted; however, based on the evidence, he was not entitled to an entry-level status separation.  He acknowledged his separation by his signature on his DD Form 214.  

4.  It is noted that the applicant was assigned RE-3, which is waivable for reenlistment.  He should contact his nearest recruiting office concerning enlistment back into the military.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 December 1995, the date of his separation from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 December 1998.  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

___DED_  __WFC__  __HOF___  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.




      ___ ____
                CHAIRPERSON




INDEX

CASE ID
AR20060009493
SUFFIX

RECON

DATE BOARDED
20070213
TYPE OF DISCHARGE

DATE OF DISCHARGE
19951207
DISCHARGE AUTHORITY
AR635-200, Chap 5, para 5-11
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.


ABCMR Record of Proceedings (cont)                                         AR20060009493



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508