IN THE CASE OF:	  

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20090004537 


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 correction of the narrative reason for separation and separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to remove the entries "Failure to Meet Procurement Medical Fitness Standards" and "JFW."

2.  The applicant states that the Department of Veterans Affairs (DVA) has ruled that there is no evidence of asthma.  He adds that on 18 March 1998, while in the Army, he underwent a pulmonary function test but he was not given the results of the exam.  He was diagnosed as having asthma although he ran cross-country and track during junior high school and never had asthma.  He believes that he was misdiagnosed by the one-time pulmonary test that was required by the Army. 

3.  The applicant provides a copy of his DD Form 214, dated 7 May 1998; and a copy of the DVA rating decision, dated 3 November 1998, in support of his request. 

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 3 February 1998 and was subsequently assigned to Fort Benning, GA for completion of basic combat and advanced individual training under the one station unit training (OSUT) program for an infantry military occupational specialty.

3.  Shortly after his arrival at Fort Benning, the applicant complained of shortness of breath and chest pain while running during physical training.  His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 22 April 1998, shows he 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 (EPTS).  He further recommended that the applicant be considered for separation.

4.  On 9 April 1998, 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 – Enlisted Personnel). 

5.  On 20 April 1998, 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.

6.  On 20 April 1998, the applicant’s immediate commander recommended approval of the applicant’s discharge/separation.

7.  On 27 April 1998, the discharge authority approved the applicant's separation from the Army.  Accordingly, he was discharged on 7 May 1998.  The DD Form 214 he was issued shows that his character of service was uncharacterized 

under the provisions of paragraph 5-11 of Army Regulation 635-200.  This form further shows he completed a total of 3 month and 4 day of creditable service.  Item 26 (Separation Code) of this form shows the entry "JFW" and item 28 (Narrative Reason for Separation) shows the entry "Failure to Meet Procurement Medical Fitness Standards." 

8.  The applicant submitted a copy of the DVA rating decision, dated 3 November 1998, that shows his claim for service-connection for exercise induced asthma is not well grounded and that a well grounded claim for service-connection must be accompanied by evidence that shows the claimed condition existed and was possibly related to service.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are 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 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 (Standards of Medical Fitness), chapter 3.  The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized [entry level status] if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of the separation codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The "JFW" SPD code is the correct code for members separating under the provisions of paragraph 5-11 of Army Regulation 635-200 by reason of failure to meet procurement medical fitness standards.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation and separation code should be removed.  

2.  The evidence of record shows the applicant was found medically unqualified for service shortly after reporting for basic combat training.  The EPSBD proceedings clearly established that he suffered from a disqualifying medical condition - asthma - that existed prior to his service.  The condition was presumably diagnosed by competent military medical personnel.  The applicant concurred with the findings of the EPSBD.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as uncharacterized.  

3.  The narrative reason for separation was assigned based on the fact that he suffered from a disqualifying medical condition that existed prior to his service and he did not meet medical procurement standards.  The only valid narrative reason for separation permitted under that paragraph is "Failure to Meet Procurement Medical Fitness Standards" and the appropriate separation code associated with this discharge is "JFW."

4.  There is no evidence in the available records nor did the applicant provide evidence to substantiate a removal of the narrative reason for separation or the 
separation code.  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

____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.



      ________XXX_______________
               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)                                         AR20090004537



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ABCMR Record of Proceedings (cont)                                         AR20090004537



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