IN THE CASE OF:	  

		BOARD DATE:	      13 AUGUST 2009

		DOCKET NUMBER:  AR20090005525 


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 for medical reasons.

2.  The applicant states, in effect, his discharge should be changed because he was discharged honorably for having a medical condition - bronchial asthma.

3.  In addition to a DD Form 149 (Application for Correction of Military Record), the applicant submitted a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 evidence shows the applicant enlisted in the Regular Army on                21 February 1991 in the rank and pay grade of Private, E-1.  He was assigned to Fort Knox, Kentucky, to attend training in military occupational specialty 19D (Cavalry Scout).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record, Part II) shows he was not promoted beyond his entry rank and pay grade.  His records document no acts of valor or service warranting special recognition.

4.  The applicant's medical records are not available for the Board's review.  These records were requested by the Veterans Administration Regional Office (VARO), New Orleans, Louisiana, on 23 July 1991, at approximately the time the applicant filed a claim for service-connected disability compensation or benefits.

5.  All documents pertaining to the applicant's discharge are not available for the Board's review; however, a completed DD Form 214 is on file in his service personnel record.  The DD Form 214 shows that the applicant was discharged in the rank and pay grade of Private, E-1, on 24 May 1991.  He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 5, Paragraph 5-11.  The separation code annotated to the applicant's DD Form 214 is "JFT" and the narrative reason for separation is shown to be, "Did Not Meet Procurement Medical Fitness Standards - No Disability."  At the time of the applicant's discharge, he had completed 3 months and 4 days net active service with no time lost.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5 established policy and procedures for the separation of enlisted personnel for the convenience of the Government.  This regulation provided that Soldiers being separated for the convenience of the Government would be provided a character of service of honorable, under honorable conditions or an entry level separation.  Paragraph 5-11, in pertinent part, provides for the separation of personnel who did not meet procurement medical fitness standards.  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 (AD) or active duty for training (ADT), for initial entry training would be separated.  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 AD for Regular Army, or during ADT for initial entry training.  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.

8.  Entry level status is defined in the glossary of Army Regulation 635-200, for Regular Army Soldiers, as those Soldiers who have completed no more than 180 days of continuous AD or no more than 180 continuous days of AD following a break in service of more than 92 days of active military service.

9.  The separation code found on the applicant's DD Form 214, "JFT," is found in the Appendix to Army Regulation 635-5-1 (Separation Program Designators (SPD)).  The separation code is translated to signify the reason, "Did Not Meet Procurement Medical Fitness Standards - No Disability." 

10.  Army Regulation 40-501 (Medical Services - Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs; medical fitness standards for retention and separation, including retirement; medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachutist training and duty, and certain enlisted military occupational specialties and officer assignments; medical standards and policies for aviation; physical profiles; and medical examinations and periodic health assessments.

11.  Paragraph 2-23 of Army Regulation 40-501 states, in pertinent part, that asthma, including reactive airway disease, exercise-induced bronchospasm or asthmatic bronchitis, reliably diagnosed and symptomatic after the 13th birthday, is disqualifying.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have received an honorable discharge for medical reasons was carefully considered; however, there is insufficient evidence to support his claim.

2.  By the applicant's own admission, he had a medical condition, bronchial asthma.  Even though the applicant's medical records and discharge file are not available for the Board's review, this condition precluded him from meeting Army medical fitness procurement standards.  According to the applicable regulation, asthma, including reactive airway disease, exercise-induced bronchospasm or asthmatic bronchitis, reliably diagnosed and symptomatic after the 13th birthday, is disqualifying for enlistment.

3.  The evidence shows that separation action was initiated on the applicant prior to his having completed 180 days of continuous active military service in view of the amount of service he had at the time of his discharge.  It is believed, and administrative regularity is presumed, that his separation processing was accomplished in accordance with the applicable regulation.  It is further believed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The record shows the applicant's service was described as uncharacterized as a result of his being separated while in an entry level status.  A Soldier is in an entry level status, or probationary period, for the first 180 days of continuous active duty.

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 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.




      _______ _   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)                                         AR20090005525





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ABCMR Record of Proceedings (cont)                                         AR20090005525



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