IN THE CASE OF:	  

	BOARD DATE:	  14 August 2008

	DOCKET NUMBER:  AR20080009893 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the reason for his uncharacterized discharge be changed and that his discharge be upgraded to honorable.  He also requests service-connection for his skin condition.

2.  The applicant states, in effect, that his skin condition did not exist prior to service.  He wants his records to show service connection for hypersensitivity to rubber products.  He also states that a private medical examination by a dermatologist shows that he is not allergic to rubber products and that he was improperly discharged from the Regular Army.  He adds that the Army discharge Review Board (ADRB) did not validate his claim.  His skin condition comes and goes whenever it pleases and burns from the inside out.  He contends that he completed his training but it does not appear on his Certificate of Release or Discharge from Active Duty (DD Form 214).  He feels like he is not getting the respect a Soldier should receive.  

3.  The applicant provides copies of his DD Form 214; Entrance Physical Standards board Proceedings; driver’s license; social security card; birth certificate; page 17 of a Department of Veterans Affairs (VA) Progress Note; and a standard data collection form dated 13 September 2004, indicating a negative reading to 20 skin tests performed on his back.





CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 6 February 2004, the applicant enlisted in the Regular Army for 3 years.  He opted for training in military occupational specialty (MOS) 74D (Chemical Operations Specialist).  

3.  On 4 June 2004, the applicant was evaluated by an Entrance Physical Standards Board (EPSB).  The chief complaint was a stinging, and itchy and burning [sensation] to facial area with wear of the protective mask.  The physical examination revealed an increased edema and erythema at the areas where the applicant was exposed to the protective mask.  The diagnosis was a hypersensitivity to rubber products, most specifically to the protective mask.  The findings were approved by the appropriate authority on 21 June 2004.  

4.  On 28 June 2004, the applicant concurred with the findings of the EPSB.

5.  On 28 June 2004, the applicant’s commander recommended that the applicant be discharged.  The commander indicated that the applicant had not completed training or been awarded an MOS.

6.  On 29 June 2004, the appropriate authority directed that the applicant be discharged.

7.  On 9 July 2004, the applicant was accordingly discharged.  The applicant’s DD Form 214 shows that the Narrative Reason for his discharge was “Failed Medical/Physical Procurement Standards.”  His service was uncharacterized.  He had completed 5 months and 4 days of creditable active duty.

8.  The applicant’s service medical records are not available for Board review.

9.  On 13 October 2006, the ADRB denied the applicant’s request for an upgrade of his discharge.

10.  Army Regulation 40-501, chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

11.  Army Regulation 635-40, chapter 5, provides, in pertinent part, that if a Soldier is processed for failure to meet procurement 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.

12.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.  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 entrance on active duty or active duty 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 that 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.  

13.  Army Regulation 635-200 also defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant admits to suffering from a skin condition that comes and goes and causes a burning sensation.  Furthermore, the applicant concurred with the EPSB findings.  It is reasonable to conclude that not only did the applicant suffer from this skin condition prior to his enlistment in the Regular Army, but that he still suffers from this condition.  Therefore, service-connection is not warranted. 

4.  The evidence clearly shows that the applicant had not completed his MOS training.  Therefore, this training was not entered on his DD Form 214.  

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

____X___  ___X____  ___X____  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.



	___________X____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080009893



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