RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 22 May 2007 
	DOCKET NUMBER:  AR20060016029 


	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

Ms. Joyce A. Wright 

Analyst


The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. Thomas E. O’Shaughnessy 

Member

Mr. James R. Hastie

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 uncharacterized discharge be upgraded to honorable.

2.  The applicant states, in effect, that his uncharacterized discharge should be upgraded to honorable.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his ADRB (Army Discharge Review Board) proceedings, a copy of his DA Form 4707 Entrance Physical Standards Board (EPSBD) Proceedings, and a copy of his computerized Standard Form (SF) 600 (Chronological Record of Medical Care), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 25 March 2005, in pay grade E-4.  He entered active duty on 18 April 2005 and was scheduled to attend basic combat training at Fort Sill, Oklahoma, and advanced individual training at Fort Sam Houston, Texas, in military occupational specialty (MOS), 91G, Patient Administration.  

2.  The applicant provides a copy of his SF 600, dated 31 May 2005, which shows that he was diagnosed as having shortness of breath, bronchitis, upper respiratory infection, and acute bronchitis.  His SF 600 also listed several other ailments and that he was currently on medication.

3.  The applicant provides a copy of his EPSBD Proceedings which shows that he was diagnosed as having asthma.  The EPSBD indicated that the applicant did not meet medical fitness standards for enlistment or induction under the provisions of Army Regulation 40-501, chapter 2, paragraph 2-23d.  The EPSBD also indicated that the applicant’s EPTS condition was not service aggravated and that he did not meet retention standards under the provisions of Army Regulation 40-501, chapter 3.  On 3 June 2005, the medical approving authority recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-11.  On 10 June 2005, the applicant concurred with the recommendation of the EPSBD and requested to be discharged without delay.  On 13 June 2005, the discharge authority approved the proceeding for his separation from the Army.



4.  The applicant’s DD Form 214 shows that on 14 June 2005 he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards.  He was furnished an uncharacterized discharge.  He had a total of 1 month and 22 days of creditable service.

5.  On 18 April 2005, the ADRB denied the applicant's petition to upgrade his discharge.

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5, paragraph 5-11 specifically provides that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within six months of the Soldier's initial entrance on active duty, that the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

7.  Army Regulation 40-501 governs medical fitness standards for induction, enlistment, appointment, retention, separation, retirement, officer procurement programs and related policies and procedures.  Paragraph 2-23d pertains to asthma, including reactive airway disease, exercise induced bronchospasm 
or asthmatic bronchitis, reliably diagnosed at any age.

8.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3.  If the medical evaluation board determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board.

9.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

10.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the decision of the Army Discharge Review Board; therefore, the applicant has timely filed.

2.  The applicant’s contention was considered; however, he was diagnosed as having asthma and appeared before an EPSBD which determined that he did not meet medical fitness standards for enlistment or induction.  The Board also noted that the EPSBD indicated that the applicant’s EPTS condition was not service aggravated and that he did not meet retention standards under the provision of Army Regulation 40-501, chapter 3.  

3.  The EPSBD recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph 5-11.  He concurred with the recommendations and requested to be discharged.  

4.  The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___HOF_  __TEO___  ___JRH_  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.




_____Hubert O. Fry________
          CHAIRPERSON




INDEX

CASE ID
AR20060016029
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070522
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE
20050614
DISCHARGE AUTHORITY
AR 635-200, chapter 5
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.


Army Regulation 40-501, at chapter 3, provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

Army Regulation 635-40, chapter 5, provides, in pertinent part, that if a soldier is processed for failure to meet procurement medical fitness standards within the first six months of entry on active duty and the condition existed prior to the term of service, then the soldier will be discharged in an entry level status with uncharacterized service.