IN THE CASE OF:	  

		BOARD DATE:	  	  22 January 2009

		DOCKET NUMBER:  AR20080015801 


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 his uncharacterized discharge be changed to an honorable discharge.  

2.  The applicant states, in effect, he was discharged due to asthma/reactive airway disease and believes his discharge should be changed to an honorable discharge based on his medical condition.  He also states, at the time, he was informed he was getting an honorable discharge and his father was also told this same thing over the telephone by military personnel at Fort Benning, Georgia.  The applicant further states he wanted to serve his country in a military capacity and he now wants to give back to his community and local government as a law enforcement officer; however, his uncharacterized discharge is preventing this. He adds that the Department of Veterans Affairs (VA) office in Memphis, Tennessee explained to him that his discharge was uncharacterized because he was not in the service long enough for his service to be characterized and advised him to apply to the Army Board for Correction of Military Records to have his discharge changed.

3.  The applicant provides a self-authored statement, dated 28 September 2008; copies of a DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 18 December 2000; DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 13 November 2000; DA Form 2823 (Sworn Statement), dated 28 November 2000; Standard Form (SF) 93 (Report of Medical History), dated 10 August 2000; and SF 88 (Report of Medical Examination), dated 10 August 2000, in support of his application.

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 records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 18 December 2000 in the Delayed Entry Program (DEP).  He was discharged from the DEP on 31 October 2000 and enlisted in the Regular Army (RA) on 1 November 2000 for a period of 4 years.

3.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 35 (Record of Assignments) shows he was assigned to the 30th Adjutant General Battalion (Reception), Fort Benning on 1 November 2000 and he was discharged on 18 December 2000.

4.  The applicant’s military personnel records contain a DD Form 214, with an effective date of 18 December 2000, that confirms he entered active duty on
1 November 2000 and was separated from the RA on 18 December 2000 with an uncharacterized discharge, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11, based on failure to meet procurement medical fitness standards with the Separation Code “JFW.”  At the time he had completed 1 month and 18 days net active service this period.  Item 18 (Remarks) shows the applicant had service in the DEP from 27 October 2000 to 31 October 2000 and he did not complete his first full term of service.

5.  In support of his application, the applicant provides the following documents.

     a.  DA Form 4707, dated 13 November 2000, that shows, in pertinent part, the evaluating physicians found that the applicant was in his first week of his initial enlistment training at the Reception Station and on 7 November 2000 he was identified as having a condition that existed prior to service (EPTS).  This document shows that the findings of the EPSBD indicated an undisclosed history of asthma that was diagnosed as Asthma/Reactive Airway Disease.  The DA Form 4707 further shows that the applicant did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction); the medical condition EPTS; the applicant did not meet the retention standards of Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement); and it was recommended the applicant be separated from the military service under the provisions of Army Regulation 635-200, paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards).  This document also shows that the applicant concurred with the medical board proceedings and requested to be discharged from the U.S. Army without delay.  The DA Form 4707 further shows that the discharge authority approved the applicant’s discharge on 20 November 2000.

     b.  DA Form 2823, dated 28 November 2000 shows, in pertinent part, that the applicant made the following statement under oath, “I came into the Army with asthma existing before active duty.”  This document also shows that the applicant initialed and signed the statement on 28 November 2000 and that the statement was signed by both a witness and the applicant’s company commander.

     c.  SF 93, dated 10 August 2000, that was completed by the applicant at the time of his enlistment examination and shows, in pertinent part, in response to Item 11 (Have You Ever Had or Have You Now), Asthma, the applicant placed a checkmark in the “No” column.

     d.  SF 88, dated 10 August 2000, that was completed by the physician conducting the applicant’s enlistment examination and, in pertinent part, fails to show any indication of an asthma-related medical condition.

6.  Army Regulation 40-501, Chapter 2, paragraph 2-23 (Lung, chest, wall, pleura, and mediastinum), provides the causes for rejection for appointment, enlistment, and induction and subparagraph 2-23d, in pertinent part, specifies Asthma, including Reactive Airway Disease.

7.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-11, in pertinent part, provides that medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier’s initial entrance on active duty in the Regular Army.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  
It identifies the SPD code of “JFW” as the appropriate code to assign enlisted Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 5-11, based upon failure to meet medical/physical procurement standards.

9.  Army Regulation 635-200, Chapter 3 (Character of Service/Description of Separation), Section II (Types of Characterization or Description), paragraph
3-4 (Types authorized), provides that the following types of characterization of service or description of separation are authorized:  (1) separation with characterization of service as honorable, general (under honorable conditions), or under other than honorable conditions; (2) entry level status (service will be uncharacterized), except as provided in paragraph 3-9a; (3) order of release from the custody and control of the Army by reason of void enlistment or induction; and (4) separation by being dropped from the rolls of the Army.  The types of separation will be used in appropriate circumstances unless limited by the reason for separation.

10.  Army Regulation 635-200, paragraph 3-7 (Types of administrative discharges/character of service), provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry level status separation (uncharacterized) is warranted.

11.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status.  This document provides, in pertinent part, that entry-level status terminates 180 days after the Soldier’s entry on active duty.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his uncharacterized discharge should be changed to an honorable discharge because he was informed he was getting an honorable discharge based on his medical condition.  He also contends his uncharacterized discharge should be changed to honorable because it prevents him from becoming a local law enforcement officer.

2.  The evidence of record shows that the applicant had service in the USAR DEP from 27 October 2000 to 31 October 2000 and he entered active duty in the RA on 1 November 2000.

3.  The evidence of record shows that the applicant failed to acknowledge during his entrance examination that he had a medical condition related to asthma.  The evidence of record also shows the applicant subsequently acknowledged that he entered the Army with asthma that existed prior to entering military service.  The evidence of record further shows that a medical board found the applicant’s medical condition EPTS and recommended the applicant be separated from military service under the provisions of Army Regulation 635-200, paragraph
5-11; the applicant concurred with the medical board’s findings and recommendation; and as a result he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11.

4.  There is no evidence of record, and the applicant provides insufficient evidence, to show that he and his father were informed he would receive an honorable discharge.  In fact, the preponderance of evidence of record contradicts the applicant’s contention.

5.  The evidence of record shows that a separation will be described as an entry level separation with service uncharacterized, if separation action is initiated while a Soldier is in entry level status (i.e., has completed no more than 180 days of creditable continuous active duty).

6.  The evidence of record shows that the applicant entered active duty on
1 November 2000, he was medically discharged on 18 December 2000, and he had completed 1 month and 18 days (i.e. 48 days) of net active service during this period.  Thus, the evidence of record confirms the applicant was in an entry level status and his character of service is correctly recorded as “uncharacterized” on his DD Form 214.  Therefore, he is not entitled to correction of the character of service recorded on his DD Form 214 with an effective date of 18 December 2000.

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 this 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)                                         AR20080015987



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ABCMR Record of Proceedings (cont)                                         AR20080015801



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