IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019851 


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 that the type of separation, character of service, and narrative reason shown on his discharge document be changed.  He requests, in effect, change of the reason for his discharge to physical disability retirement or medical discharge.

2.  The applicant states he was not told he was diagnosed with chronic obstructive pulmonary disease (COPD) upon discharge.  His discharge was due to medical, not fitness.  He states the information wasn't available to him during discharge.  He was available to sign his discharge document, he just wasn't notified.

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.  A Standard Form 93 (Report of Medical History), dated 5 October 1994, completed during the applicant's pre-enlistment medical examination, shows the applicant indicated he had no medical maladies in item 11 (Have You Ever Had or Have You Now) [this item includes an extensive list of medical conditions].

3.  The applicant enlisted in the Regular Army for a period of 3 years and 17 weeks on 28 December 1994.

4.  A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 22 February 1995, shows the EPSBD found the applicant was medically unfit for enlistment in accordance with current medical fitness standards.  It also shows the applicant was diagnosed with COPD and in the opinion of the evaluating physicians, the applicant's condition existed prior to service.  The EPSBD recommended the applicant be separated from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11, for failure to meet medical fitness standards.

	a.  The medical approving authority approved the EPSBD proceedings and the applicant was informed of the results.

	b.  On 8 March 1995, the applicant concurred with the EPSBD proceedings, requested discharge from the U.S. Army without delay, and placed his signature on the document.

	c.  On 9 March 1995, the company commander recommended approval.

	d.  On 13 March 1995, the separation authority directed that the applicant be discharged from the Army.

5.  Headquarters, U.S. Army Infantry Center, Fort Benning, GA, 
Orders 074-2221, dated 15 March 1995, reassigned the applicant to the U.S. Army Transition Point for separation processing and discharge on 20 March 1995.

6.  A DD Form 214 shows the applicant was discharged on 20 March 1995.  He completed 2 months and 23 days of net active service.  It also shows in:



	a.  item 21 (Signature of Member Being Separated) – "Soldier not available to sign,"

	b.  item 23 (Type of Separation) – "discharge,"

	c.  item 24 (Character of Service) – "uncharacterized,"

	d.  item 25 (Separation Authority) – "Army Regulation 635-200, paragraph 
5-11," and

	e.  item 28 (Narrative Reason for Separation) - "failure to meet procurement medical fitness standards."

7.  The applicant did not apply to the Army Discharge Review Board for correction of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 5 (Separation for Convenience of the Government), paragraph 
5-11, provided 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 entry on active duty or active duty for training for initial entry training may be separated.  Such conditions must be discovered during the first 6 months of active duty and will result in an EPSBD, which must be convened within the Soldier's first 6 months of active duty.

	b.  Paragraph 3-7 (Types of Administrative Discharges/Character of Service) 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Only the honorable characterization may be awarded to a Soldier upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry-level status separation (uncharacterized) is warranted.



	c.  Section II (Terms) of the glossary states that for Regular Army Soldiers, entry-level status is the first 180 days of continuous active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the type of separation, character of service, and narrative reason shown on his discharge document should be corrected because he was not told he was diagnosed with COPD, this information wasn't available to him during his discharge proceedings, and his discharge was not due to failing to meet medical fitness standards.

2.  The applicant's contentions were carefully considered.  The evidence of record shows:

	a.  An EPSBD was convened within the applicant's first 6 months of active service and found the applicant's condition (i.e., COPD) medically disqualifying under procurement medical fitness standards.

	b.  The applicant concurred with the EPSBD proceedings on 8 March 1995 and requested discharge from the U.S. Army without delay.

	c.  Prior to the applicant completing 180 days of active service, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-11, for failure to meet medical fitness standards with uncharacterized service.

3.  Records confirm the applicant's separation was administratively correct and in compliance with applicable regulations in effect at the time.

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 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)                                         AR20100019851



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ABCMR Record of Proceedings (cont)                                         AR20100019851



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