IN THE CASE OF:	 

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080015120 


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 characterization of the discharge he received on 21 September 1998 be changed to honorable instead of uncharacterized.

2.  The applicant states that after getting a series of shots he started bleeding from the rectum and having major chest pain.  He further states he was discharged with over ten medications and was told to report to the Department of Veterans Affairs (VA).

3.  The applicant provides, in support of his application, copies of DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 21 September 1998, three pages from his service medical records, one page form medical records at St. Mary's Medical Center, and two pages from medical records at Jacobi Medical Center.

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.  The applicant's military personnel record shows he initially enlisted in the U.S. Army Reserve on 7 May 1998 for a period of 8 years.  He was ordered to report for 17 weeks of initial active duty for training (IADT) on 8 July 1998.  He reported for basic combat training on 8 July 1998 at Fort Benning, Georgia.

3.  Immunization records, submitted by the applicant, show he received one shot and a sensitivity test on 9 July 1998.  These records further show he received two shots and an oral polio vaccine on 13 July 1998.

4.  On 14 July 1998, the applicant was treated for rectal bleeding and chest pains.

5.  The applicant was treated for chest pains at St. Mary's Medical Center, West Palm Beach, Florida.

6.  On 5 August 1998, an Entrance Physical Standards Board (EPSBD) found that the applicant suffered from exercise induced shortness of breath, dyspnea, chest tightness and wheezing and that he was unable to train secondary to signs and symptoms.  Laboratory results were positive for asthma.  The applicant was diagnosed with reactive airway disease.

7.  The EPSBD found the applicant did not meet medical fitness standards for enlistment under the provisions of paragraph 2-23d, Chapter 2, Army Regulation 40-501 (Standards of Medical Fitness) and that his condition existed prior to service.  The EPSBD further found the applicant did meet retention standards under the provisions of Chapter 3 of Army Regulation 40-501 and recommended that he be separated from the military service under paragraph 5-11 of Army Regulation 635-200 (Personnel Separations).

8.  On 21 August 1998, the applicant acknowledged that he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he may consult a civilian attorney at his own expense.  He was further advised that he may request to be discharged from the Army without delay or he may request retention on active duty.  The applicant concurred with the proceedings and requested to be discharged from the Army without delay.



9.  On 16 September 1998, the applicant was admitted and treated for chest pain at the Jacobi Medical Center, Bronx, New York.  He was discharged the following day with a diagnosis of pericarditis (inflammation of the pericardium [the conical sac of serous membrane that encloses the heart and the roots of the great blood vessels of vertebrates]).

10.  On 21 September 1998, the applicant was discharged by reason of his failure to meet procurement medical fitness standards.  He had completed 
2 months and 14 days of active service that was determined to be uncharacterized.

11.  Army Regulation 40-501, in pertinent part, prescribes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction into military service.  Paragraph 2-23 of this regulation states that one of the causes for rejection for appointment, enlistment, and induction is asthma, including reactive airway disease, exercise-induced bronchospasm or asthmatic bronchitis, reliably diagnosed and symptomatic after the 13th birthday.

12.  Army Regulation 635-200 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.  Such conditions must be discovered during the first 
6 months of active duty and will result in an Entrance Physical Standards Board (EPSB).

13.  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.  The characterization of service for soldiers separated under this provision of regulation will normally be honorable, but will be uncharacterized if the soldier is in an entry level status.

14.  The Glossary contained in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) defines entry level status.  For USAR soldiers, entry-level status begins upon enlistment in the USAR.  For soldiers ordered to IADT for one continuous period, entry level status terminates 180 days after beginning training.  For soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I BT or basic combat training (BCT) remain in entry-level status until 90 days after beginning Phase II.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the characterization of his discharge should be changed to honorable.

2.  The records show the applicant did receive three shots over a period of 
5 days.  However, there is no evidence that shows they had an effect on the medical treatment he was receiving.  The records show the applicant had received treatment for rectal bleeding and chest pains.

3.  An EPSBD, established that reactive airway disease was identified by appropriate medical authority within six months of the applicant’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.  

4.  The applicant concurred with the EPSBD proceedings and requested discharge from the Army without delay.  Therefore, the applicant's administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

5.  The applicant had been on active duty for less than 180 days.  Therefore, the applicant was still in an entry level status and the uncharacterized discharge he received is correct in accordance with the regulation.

6.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

7.  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 that requirement.



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)                                         AR20080015120





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ABCMR Record of Proceedings (cont)                                         AR20080015120



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