RECORD OF PROCEEDINGS


	IN THE CASE OF:	  
				  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060010220 


	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. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Ernestine I. Fields

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 that the diagnosis of asthma be stricken from her records and that her separation program designator (SPD) and reenlistment eligibility (RE) code be changed.

2.  The applicant states her current physician believes that the childhood and military diagnosis of asthma are incorrect.  She states that she participated in sports during junior high and high school without any treatment for asthma or respiratory problems.  She wishes to have the diagnosis stricken from her records to enable her to reenter the military without restriction. 

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty, a Medical Evaluation Board (MEB) proceedings,  three documents related to her separation processing, three American Red Cross lifeguard training certificates, a personal statement outlining her pre- and post-service life, a statement from her physician stating that current pulmonary function studies indicate the applicant does not suffer from asthma, and statements from her husband and mother attesting to the fact that they have never seen the applicant have any asthmatic problems or ever took her to a doctor for asthma treatment.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 7 November 1996, the date of her discharge.  The application submitted in this case is dated 10 July 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 records show the applicant enlisted under the Delayed Entry Program (DEP) on 24 June 1996 and entered active duty on 25 July 1996.

4.  The applicant's service and dependent medical records are not associated with the file.  The record does contain a copy of the MEB proceedings. 
5.  On 28 October 1996 an MEB determined that the applicant was suffering from asthma, that it had predated her entry onto active duty, and was not aggravated by her service.

6.  The MEB narrative summary states that she has a past history of bronchitis and asthma and since coming into the military she has had a recurrence of her asthma which prevents her from performing the run portion of her physical fitness training.  The pulmonary function test completed at that time revealed a mild airway obstruction.  A chest x-ray found bronchial wall thickening but no air space disease.  It was also noted that the applicant had bronchitis at the time the x-ray was taken.  The attending physician rendered the diagnosis of asthma (that existed prior to service [EPTS]) and episodes of bronchitis based in part on her medical records as a military dependent.  The applicant was determined to be medically unacceptable and it recommended the case be referred to a Physical Evaluation Board (PEB).

7.  On 24 October 1996 the applicant submitted a request for separation and waiver of a PEB evaluation.  In her statement she acknowledged the findings of the MEB and waived her right to have her case referred to a PEB.

8.  On 4 November 1996 the discharge authority approved the discharge request and directed the applicant receive an uncharacterized entry-level separation.

9.  The applicant was discharged on 7 November 1996, under the provisions of Army Regulation 635-40, chapter 5, for a physical disability that existed prior to service.  She received an uncharacterized separation with an SPD of KFN (Disability, ETS) and an RE Code 3.  She had 3 months and 13 days of creditable service.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 5 provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when Soldier requests waiver of PEB evaluation. 

DISCUSSION AND CONCLUSIONS:

1.  At the time of her MEB the applicant was suffering from a mild airway obstruction which may or may not have been caused by bronchitis.  

2.  However, with the history of asthma in her records the medical opinion at that time was that she also had asthma and that this condition was medically unfitting.

3.  The applicant did not disagree with that diagnosis at that time and has not questioned the diagnosis until recently.

4.  The only available record of treatment specifically for asthma is the one referenced in the MEB of when she was 12 years old.  Her current physician indicates that there are no current manifestations of asthma and believes that that diagnosis is in error.

5.  The applicant was referred to the MEB due to breathing problems that prevented her from completing the running portion of her PT.  What was the cause of this problem may be in question. 

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 November 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 November 1999.  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

_KLW___  __LMD  __  __EF_____  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.




__    Kenneth L. Wright____
          CHAIRPERSON


INDEX

CASE ID
AR20060010220
SUFFIX

RECON
 
DATE BOARDED
20070410 
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.