IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100012298 


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 his uncharacterized discharge be changed to honorable or a medical discharge.  

2.  The applicant states he was released from the Army for failure to meet procurement medical fitness standards which occurred during basic training.  He should have been released medically after appearing before a Physical Evaluation Board (PEB).  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 28 May 1997.  He was assigned to Fort Leonard Wood, MO for basic training.  

3.  An Entrance Physical Standards Board (EPSBD) evaluated the applicant on 16 June 1997 for asthma.  After careful consideration of medical records, laboratory findings, and medical examinations, the EPSBD found that the applicant was medically unfit for enlistment in accordance with current medical fitness standards.  The evaluating physicians determined that the condition existed prior to service, noting he had a past medical history of wheezing and shortness of breath prior to this induction into the Army.  He was given a physical profile of 311111.  

4. The EPSBD recommended that the applicant be separated from the U.S. Army for this EPTS (existed prior to service) condition.  He was given a profile to remove him from training.  The appropriate medical authority approved the findings on 26 June 1997.

5.  The applicant acknowledged that he had been informed of the medical findings and indicated that he understood that legal advice of an attorney employed by the Army was available to him or that he could consult civilian counsel at his own expense.  He also indicated that he understood he could request to be discharged from the U.S. Army without delay or request retention on active duty.  He concurred with the proceedings and requested to be discharged from the U.S. Army without delay.  

6.  The discharge authority directed that the applicant be discharged from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11 with an entry level status uncharacterized discharge.  

7.  The applicant was discharged on 16 July 1997 under the provisions of Army Regulation 635-200, paragraph 5-11 by reason of failure to meet procurement medical fitness standards with an entry level status uncharacterized discharge.  He had 1 month and 19 days of creditable active service.

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that 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 entrance on active duty or active duty training or initial entry training will be separated.  A medical proceeding, 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 that time, 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 of regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry level status.  Army regulations state that a Soldier is in an entry level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.

9.  Army Regulation 635-200, paragraph 3-7a, provides 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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.  Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The EPSBD determined the applicant’s medical condition (asthma) existed prior to service.  

2.  The applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-11 based on failure to meet procurement medical fitness standards was administratively correct and in conformance with applicable regulations.

3.  The applicant was in an entry level status at the time of separation from active duty because he had served fewer than 180 days of active Federal service.  The determination that the applicant's service was "uncharacterized" was in compliance with Army regulation governing separations of Soldiers while an in an entry level status.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means that the Soldier has not been in the Army long enough for his character of service to be rated as honorable or otherwise.  

4.  The applicant has failed to show through the evidence submitted or the evidence of record that an error or injustice exists in this case.  Therefore, there is no basis for granting his request.  

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)                                         AR20100012298





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ABCMR Record of Proceedings (cont)                                         AR20100012298



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