RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070016269 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Frank C. Jones, II

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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 reconsideration of his earlier request to upgrade his uncharacterized discharge to honorable.

2.  The applicant states his original submission to the Army Board for Correction of Military Record's (ABCMR) contained 20 evidentiary exhibits, including Army medical documents, civilian medical documents, separation documents, and a letter from his former training brigade commander.  In his submission to the ABCMR, he argues:

	a.  the Army induced him to agree to a discharge by asserting he would receive an honorable discharge when his company commander knew that assertion to be false and contrary to Army Regulations;

	b.  Army doctors violated established medical protocols and misdiagnosed his condition; those medical findings were rejected by a civilian respiratory specialist; 

	c.  he was denied legal counsel despite repeated attempts to obtain same; and 

	d.  his drill sergeants were abusive and mistreated recruits pending discharge.

3.  The applicant further states, in effect, he is not a US citizen and needs an honorable characterization of service in order to speed up the naturalization process.  He argues that he will ultimately gain citizenship, but the delay caused by his Army discharge is depriving the US Government of the full benefit of his skills and expertise – Middle Eastern linguistic skills, etc. – at the earliest possible opportunity.

4.  The applicant provides the following additional documentary evidence in support of his application:

	a.  U.S. Army Identification Card, dated 21 June 2005;

	b.  excerpts of Medical Records, dated 11 October 2005;

	c.  report from a respiratory specialist rejecting the Army medical findings;  
	d.  letter, dated 14 September 2005, from the Commander, Headquarters, U.S. Army Field Artillery Training Center, Fort Sill, Oklahoma;

	e.  newspaper article (New York Times), dated 12 May 2006, "Army Acts to Curb Abuses of Injured Recruits”;

	f.  letter, dated 17 October 2001, from the Director of Advertising and Public Affairs, U.S. Army Recruiting Command, Fort Knox, Kentucky;

	g.  letter, dated 27 March 2002, from the Army National Guard Recruiting and Retention Division, Hanover, Maryland;

	h.  College Transcripts, dated 16 May 2007, Columbia University, New York, New York;

	i.  resume and Language Skills Exhibit; and

	j.  status of contract job as a consultant for the Army.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR 20060016029, on 22 May 2007.

2.  The applicant submitted his U.S. Army Identification Card; excerpts from his service medical records; a report from a civilian respiratory specialist purportedly rejecting the Army's medical findings; a letter from the Brigade Commander, US Army Field Artillery Training Center, Fort Sill, Oklahoma; a New York Times article recounting abusive treatment of injured Soldiers-in-training; a letter from the Director of Advertising and Public Affairs, U.S. Army Recruiting Command, Fort Knox, Kentucky; a letter from the Army National Guard Recruiting and Retention Division, Hanover, Maryland; Columbia University college transcripts; his resume and language skills exhibit; and the status of his contract job as a consultant for the Army.  These documents were not previously reviewed by the ABCMR; therefore, they are considered new evidence and, as such, warrant consideration by the Board.


3.  The applicant's records show that he enlisted in the US Army Reserve (USAR) on 25 March 2005 in the rank and grade of specialist (SPC)/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).

4.  The applicant's SF 600 (Chronological Record of Medical Care), dated 31 May 2005, shows that shortly after his arrival at Fort Sill, he was diagnosed as having shortness of breath, upper respiratory infection, and acute bronchitis.  His SF 600 also listed several other ailments and states he was on medication at the time.

5.  The applicant's DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 2 June 2005, shows that the applicant underwent an entrance physical examination where he was diagnosed as having asthma.  The attending physician remarked on the DA Form 4707 that the applicant was found unfit for appointment or enlistment in accordance with medical fitness standards in effect and, in the opinion of the attending physician, his condition existed prior to service.  He further recommended that a Medical Board evaluate the applicant for consideration for separation.

6.  On 3 June 2005, the medical approving authority approved the findings of the EPSBD and recommended that the applicant be separated from the service under the provisions of paragraph 5-11 of Army Regulation 635-200 (Personnel Separations). 

7.  On 10 June 2005, the applicant concurred with the recommendation of the EPSBD and requested discharge from the Army without delay.  Item 21 (Action by Service Member) of the DA Form 4707 shows that the applicant understood that legal advice of an attorney employed by the Army was available to him and that he also could consult with a civilian counsel at his own expense.

8.  On 13 June 2005, the discharge authority approved the applicant's separation from the Army.  Accordingly, he was discharged on 14 June 2005. The DD Form 214 he was issued shows that his service was "uncharacterized" under the provisions of paragraph 5-11 of Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards.  It shows he had a total of 1 month and 22 days of creditable service, and that he was not transferred to the USAR, nor did he have a Reserve Obligation Termination Date (Item 6).

9.  On 18 April 2005, the ADRB denied the applicant's request for an "upgrade" of the characterization of his discharge.

10.  The applicant submitted a civilian medical report, dated 11 October 2005, in which the attending doctor stated that the applicant's pulmonary issues were "most likely [the result of] obstructive lung disease...related to his smoking."  The applicant stated he smoked 1-2 packs of cigarettes per day for 24 years.

11.  The applicant submitted a copy of a letter, dated 14 September 2005, from the Brigade Commander, Headquarters, US Army Field Artillery Training Center, Fort Sill.  In this letter, the Commander clarifies the characterization of the applicant's service and states, "It appears you were misinformed as to your characterization of service during your outprocessing."

12.  A New York Times newspaper article, dated 12 May 2006, and submitted by the applicant, discusses maltreatment of injured "recruits" while undergoing basic training.

13.  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 conducted by an Entrance Physical Standards Board (EPSBD), 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 of enlistment, 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 service prior to the initiation of separation action.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when it is determined that they did not meet physical standards for enlistment, appointment and induction in accordance with chapter 2, AR 40-501, or they no longer meet medical retention standards in accordance with chapter 3, AR
40-501.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not correct records solely for the purpose of establishing eligibility for citizenship, or other programs or benefits.  The applicant is advised to contact his local/regional United States Citizenship and Immigration Service representative for advice on how best to obtain citizenship.

2.  Evidence of record shows the applicant was found medically unqualified for service immediately after reporting for initial active duty for training.  The EPSBD proceedings clearly established that he suffered from a disqualifying medical condition that existed prior to his service.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as "uncharacterized."  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  With respect to the applicant’s specific arguments:

	a.  there is no evidence in the available records, nor did the applicant provide documentation, to substantiate that the Army "induced" him to agree to a discharge by telling him he would receive an honorable discharge, when his commander knew that assertion to be false and contrary to Army Regulations.  A letter from the Training Brigade Commander at Fort Sill surmises, "It appears you were misinformed as to your characterization of service";

	b.  the EPSBD determined the applicant suffered from asthma and did not meet medical standards for retention, even after attempted treatment.  He was assigned a permanent physical profile (P-3) which precluded his remaining on active duty or in the USAR.  His board proceedings were accomplished in 

accordance with law and regulation and the physician's assessment of his medical condition was accurate given the tests performed and the facts available at the time.  The civilian doctor's report does not prove the Army diagnosis to be wrong.  If anything, it shows a more serious pulmonary condition (obstructive lung disease) which still would have disqualified him for service;

	c.  the applicant authenticated DA Form 4707 by placing his signature in Item 21.  In so doing, he acknowledged he clearly understood that legal advice of an attorney employed by the Army was available to him and that he also could consult with a civilian counsel at his own expense; and

	d.  the applicant has not shown that he was subject to maltreatment as a result of his pre-existing medical condition which prevented his participation in basic training.

4.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an Other-Than-Honorable conditions discharge.  An Honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  The entry-level separation is given regardless of the reason for separation.  This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

5.  There is no evidence in the available records nor did the applicant provide evidence to substantiate an upgrade of her discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fcj___  __cd____  __swf___  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 to amend the decision of the ABCMR set forth in Docket Number AR20060016029, dated 22 May 2007.



							Frank C. Jones, II
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.