IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010580 


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 an upgrade of his discharge to honorable from uncharacterized.

2.  The applicant states he was told he would be discharged for medical reasons due to having asthma.  He further states his asthma never prevented him from participating in sports and he believes he should have been allowed to continue serving in the military.

3.  The applicant provides no additional documentary evidence in support of this 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 records show he enlisted in the Regular Army on 6 April 1993.  He did not complete initial entry training and was not awarded a military occupational specialty.

3.  While his discharge packet is not available, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty on 30 April 1993 with an uncharacterized character of service after completing 25 days of active service.  His DD Form 214 shows he was given a narrative reason for separation of "did not meet procurement medical fitness standard - no disability."

4.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 provides that a separation will be described as entry level with service "uncharacterized" if processing is initiated while a Soldier is in an entry-level status.  For Regular Army Soldiers, entry-level status is the first 180 days of continuous active duty.

5.  Army Regulation 635-200, paragraph 5-11, states:

	a.  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 will be separated.  Such conditions must be discovered within 6 months of the Soldier's initial entrance on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier's initial entrance on active duty for the Regular Army that:

		(1)  would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and

		(2)  does not disqualify him or her for retention in the military service per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

	b.  As an exception, a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained in the Service subject to the following conditions.  No Soldier has a right to be retained under this paragraph.  Soldiers not retained will be processed for separation.  Soldiers will not be retained under this paragraph unless both conditions below are met:

		(1)  The separation authority cited in paragraph 1-21c determines, after considering the proceedings of an Entrance Physical Standards Board, that the Soldier's disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his or her period of enlistment in the military occupational specialty for which being trained.

		(2)  The Soldier signs a statement requesting to complete the period of service for which enlisted despite his or her being subject to separation under paragraph 5-11a.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

7.  The applicant's service medical health record was not available for review.

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

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet procurement medical fitness standards with no disability.  Regulatory policy provides that a separation will be described as entry level with service "uncharacterized" if processing is initiated while a Soldier is in an entry-level status.

2.  Even though his records do not contain his discharge packet, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100008734



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ABCMR Record of Proceedings (cont)                                         AR20100010580



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