IN THE CASE OF:	

		BOARD DATE:	 10 December 2009 

		DOCKET NUMBER:  AR20090011313 


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 item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) from "disability, existed prior to service (EPTS), physical evaluation board (PEB)" to "disability."

2.  The applicant states that she was healthy and with no disabilities when she entered the military and that she was told or learned of her disabilities while serving on active duty in Germany.  She adds that while stationed in Germany, she was diagnosed with asthma, chronic headaches, sleep disturbances, gastro-esophageal reflux disease, bronchitis, lower back pain, and bilateral leg and feet pain.  She was 17 years old and remarkably well when she entered the Army and all of her illnesses occurred during her military service.  She also states that she recently visited her local representative at the Department of Veterans Affairs and was told she was ineligible to benefits because her disability existed prior to service.  She needs her DD Form 214 corrected to reflect the truth.  She is a veteran and her illness happened during her military service.

3.  The applicant did not provide any additional documentary evidence 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 she enlisted in the Regular Army on 9 September 1997.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92A (Automated Logistics Specialist).  The highest rank/grade she attained during her military service was private first class/pay grade E-3.

3.  The applicant's records also show she completed nearly 13 months of foreign service in Germany.  Her records further show she was awarded the Army Service Ribbon.

4.  On 4 November 1998, the applicant was reissued a permanent physical profile for asthma that restricted any assignment to isolated area, prevented the wearing of a protective gas mask, and prevented exposure to a smoke-filled environment.

5.  On 4 November 1998, the applicant's immediate commander stated by memorandum that the applicant was unable to perform the duties of her primary MOS based on her physical profile and reported observations from the chain of command.  He added that she was unable to perform very basic physical tasks such as running, jumping, or impact activities which were required in a physically demanding MOS.  Her limitations were so restrictive that they precluded satisfactory performance in any MOS or specialty code.

6.  On 6 November 1998, the applicant underwent a thorough medical examination.  Her narrative summary, dictated on 17 November 1998, shows she was diagnosed with iron-deficiency anemia and reversible airway disease (asthma).  The attending physician indicated that she no longer met the medical standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended her referral to the Physical Disability Evaluation System (PDES).

7.  On 17 November 1998, a medical evaluation board (MEBD) convened at the U.S. Army Medical Activity, Wurzburg, Germany, and after consideration of clinical records, laboratory findings, and physical examinations, the MEBD determined the applicant had the medical conditions of reversible airflow obstruction (asthma) and mild iron-deficiency anemia.  The MEBD recommended that she be referred to a physical evaluation board (PEB).  The applicant agreed with the MEBD's findings and recommendation and indicated that she did not desire to continue on active duty.

8.  On 22 January 1999, an informal PEB convened at Walter Reed Army Medical Center, Washington, DC, and after a review of the objective medical evidence of record, the PEB found the applicant's medical and physical impairments prevented reasonable performance of the duties required by her grade and MOS and determined that she was physically unfit due to asthma.  The PEB noted that this condition's first symptoms appeared during basic training, that it had existed prior to service, and that it was not aggravated by service and thus not ratable.  Additionally, the PEB noted that there was sufficient evidence to support an EPTS condition for which she was unfit and that her condition had not been aggravated by service, but rather was a result of natural progression.  EPTS conditions are not compensable under the PDES.  The applicant was classified under the Veterans Affairs Schedule for Rating Disabilities code 6602, but was not given a rating.  The PEB also considered her second condition of mild iron-deficiency anemia, but determined that it was not unfitting and thus not rated.  The PEB recommended the applicant be separated from the service without disability benefits.

9.  On 1 February 1999, subsequent to receiving counseling on the findings and recommendations and on her legal rights, the applicant concurred with the PEB's findings and recommendation and waived her right to a formal hearing of her case.

10.  On 8 February 1999, the PEB president approved the findings and recommendations of the PEB.

11.  On 7 April 1999, the applicant was honorably discharged.  The DD Form 214 she was issued shows she was discharged under the provisions of paragraph 
4-24b(4) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability, EPTS.  This form further shows she completed a total of 1 year, 6 months, and 29 days of creditable active military service.  Item 26 (Separation Code) shows the entry "JFM" and item 28 shows the entry "disability, EPTS, PEB."

12.  Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBDs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  Chapter 4 of Army Regulation 635-40 provides for the separation of enlisted Soldiers found to be unfit by a PEB due to a condition which existed prior to service or occurred in the line of duty and not due to the Soldier's misconduct.  Paragraph 4-24b(4) provides for separation for physical disability without severance pay.

14.  Army Regulation 635-40 states, in pertinent part, that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

15.  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 the Department of Defense and the military services to assist in the collection and analysis of separation data.  The SPD code "JFM" is the correct code for Soldiers separating under Army Regulation 635-40, paragraph 4-24b (physical disability existing prior to entry on active duty established by PEB proceedings; not entitled to severance pay). 

16.  According the U.S. Department of Health and Human Services, national Institutes of Health, National Heart, Lung, and Blood Institute, Diseases and Conditions Index, asthma is a chronic (long-term) lung disease that inflames and narrows the airways.  Asthma causes recurring periods of wheezing (a whistling sound when you breathe), chest tightness, shortness of breath, and coughing. The coughing often occurs at night or early in the morning.  Asthma affects people of all ages, but it most often starts in childhood.  In the United States, more than 22 million people are known to have asthma.  Nearly 6 million of these people are children.  The exact cause of asthma is not known.  Researchers think a combination of factors (family genes and certain environmental exposures) interact to cause asthma to develop, most often early in life.  These factors include:  An inherited tendency to develop allergies, called atopy, parents who have asthma, certain respiratory infections during childhood, contact with some airborne allergens or exposure to some viral infections in infancy or in early childhood when the immune system is developing.  If asthma or atopy runs in the family, exposure to airborne allergens (for example, house dust mites, cockroaches, and possibly cat or dog dander) and irritants (for example, tobacco smoke) may make the airways more reactive to substances in the air one breathe.  Different factors may be more likely to cause asthma in some people than in others. 

DISCUSSION AND CONCLUSIONS:

1.  Medical research indicates that the exact causes of asthma are unknown.  However, researchers think a combination of factors (family genes and certain environmental exposures) interact to cause asthma to develop, most often early in life.  

2.  The evidence of record shows the applicant suffered from a medical condition – asthma – that rendered her unable to satisfactorily perform the duties of her grade and specialty.  The PEB indicated that her first symptoms were observed during basic training.  According to accepted medical principles, the manifestation of a chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.  Consequently, her records were evaluated by an MEBD that referred her to a PEB.  The PEB found her medically unfit and found compelling evidence to support a finding that she had an EPTS condition and that her condition was not aggravated by military service.  Accordingly, the PEB recommended her separation by reason of physical disability without entitlement to severance pay.

3.  The evidence of record confirms the applicant's narrative reason for separation was assigned based on the fact that she was separated under the provisions of paragraph 4-24b(4) due to her EPTS condition of asthma.  Absent the medical condition, there was no fundamental reason to convene an MEBD and/or a PEB.  The underlying reason for her MEBD/PEB was her EPTS condition.  The only valid narrative reason for separation permitted under that paragraph is "disability, EPTS."  Therefore, the applicant received the proper narrative reason for separation.

4.  It is noted that the applicant's narrative reason for separation includes "disability" which is a medical discharge.  Furthermore, the fact that the applicant believes that she was remarkably well when she entered the Army does not negate the fact that she was found medically unfit due to her preexisting medical condition.  There is neither an error nor an injustice.

5.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  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 provide any evidence or sufficiently mitigating argument to warrant a change in the narrative reason for separation.  Therefore, she is not entitled to relief.

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)                                         AR20090011313



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ABCMR Record of Proceedings (cont)                                         AR20090011313



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