BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100024660 


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, correction of Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 September 2004 to show "disability did not exist prior to service."

2.  He states his records show his asthma was a not a pre-existing condition.  He stated his objection during the Medical Evaluation Board (MEB), but to no avail.  It was not until recently when he talked to his county veteran's service officer that he discovered there was an avenue to address such a grievance.  His DD Form 214 states he was discharged for a disability that existed prior to service (EPTS). He did have asthma, but he did not have it prior to service.

3.  He also states he entered an active duty status in 1985 and served until 1987. His Standard Form (SF) 93 (Report of Medical History), dated 20 October 1984, shows only shortness of breath due to wasp and bee stings.  The SF 93, dated 22 September 1987, shows asthma, swollen or painful joints, and pain or pressure in chest.  He was discharged from active duty and entered the U.S. Army Reserve (USAR).  He served in the USAR until he was activated in 1998.  He served in Bosnia from August 1998 to April 1999.  While there he had a heart attack and was medically evacuated to Walter Reed Army Medical Hospital where he had surgery and was returned to his Reserve unit.  In January 2004, he was activated for Operation Iraqi Freedom.  After completing pre-deployment training it was determined he was non-deployable due to his asthma.  At this time he was medically boarded and denied reenlistment due to asthma.  The military determined he had over 16 years of combined service for which he received no compensation.  He asks that his records be corrected to show the asthma was diagnosed after he enlisted and was not a pre-existing condition.

4.  He provides:

* SFs 93, dated October 1984 and September 1987 
* SFs 88 (Report of Medical Examination), dated October 1984 and September 1987 
* DD Form 214, dated 1987
* DD Form 214 Worksheet, dated 2004

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 contain an SF 93, dated 20 October 1984, which shows he underwent a physical examination for enlistment in the Regular Army (RA).  The SF 93 shows he stated he was in good health, taking no medications, and he was allergic to wasp and bee stings.  Item 11 (Have You Ever Had or Have You Now) (Please check each item) shows he checked he had shortness of breath.  The evaluating physician indicated the applicant had shortness of breathing with strenuous exercise and a severe local reaction to a bee sting, no systemic reaction.  An SF 88, dated 20 October 1984, shows he was found qualified for enlistment in the RA and he was also airborne qualified.

3.  His military records show he enlisted in the RA, in pay grade E-2, on 2 July 1985, for 3 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).  

4.  An SF 93, dated 22 September 1987, shows he underwent a separation physical examination.  The SF 93 also shows he stated he was in good health.  Item 11 shows he indicated he had swollen or painful joints, ear, nose, or throat trouble, asthma, and pain or pressure in the chest.  The evaluating physician indicated the applicant had asthma, he got chest pain with an attack, and he was taking medication.  An SF 88, dated 22 September 1987, shows he was found qualified for separation.

5.  He was discharged from active duty in pay grade E-1 on 5 November 1987, for Unsatisfactory Performance.  His service was characterized as under honorable conditions and he was issued a general discharge.

6.  He enlisted in the USAR, in pay grade E-2, on 25 March 1991, for 6 years.  He reenlisted in the USAR on 2 September 1998 for 6 years.

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 14 July 2002, shows he was taken to Mercy Medical Hospital after falling down during the two-mile run on 13 July 2002.  He was complaining of chest pain and shortness of breath.  On December 2002, his illness was determined to be in the line of duty.

8.  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 3 January 2004.  

9.  On 2 July 2004, an MEB convened and considered his diagnoses of asthma, originating in 2002; obstructive sleep apnea; and right shoulder impingement syndrome.  The MEB recommended that he be referred to a Physical Evaluation Board (PEB).  The board noted that he reported being diagnosed with asthma as a child but outgrew his symptoms in high school and had no respiratory symptoms of any kind until approximately 2 years ago.  The board also noted he did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The MEB's findings and recommendations were approved on 6 April 2004 and the applicant concurred with the findings and recommendations on 27 July 2004.

10.  On 5 August 2004, an informal PEB convened and considered his disabilities of asthma, obstructive sleep apnea, and right shoulder impingement syndrome. The PEB determined his unfitting conditions were found to be neither service incurred nor permanently aggravated by military service.  The PEB found that no permanent service aggravation resulted in the unnatural progression of his EPTS conditions.  The PEB determined his medical conditions prevented performance of duty in his grade and specialty.  The PEB found him physically unfit and recommended a combined rating of zero percent and separation without disability benefits.  

11.  On 11 August 2004, he waived his rights to a formal hearing and concurred with the findings and recommendations of the PEB.

12.  On 21 September 2004, he was honorably discharged from active duty in pay grade E-5.  He was credited with completing 8 months and 19 days of active service this period and 15 years, 9 months, and 24 days of total prior inactive service.

13.  Item 25 (Separation Authority) of his DD Form 214 shows the entry "Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(4)" and Item 28 shows the entry, "Disability, EPTS, PEB."

14.  Army Regulation 635-40 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 office, grade, rank, or rating.  Chapter 4 provides for the separation of enlisted personnel who are not qualified for retention on active duty by reason of physical disability which is neither incurred nor aggravated during any period in which the member was entitled to basic pay.  That chapter also provided for MEBs, which were convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status.  A decision was made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

15.  Army Regulation 635-40 also states Soldiers were referred into the Army Physical Disability Evaluation System when they no longer met medical retention standards in accordance with Army Regulation 40-501, chapter 3.  A PEB could decide that a Soldier's physical defect was EPTS.  Each case was first considered by an informal PEB.  A Soldier was entitled to a formal hearing if requested after informal consideration by a PEB.  Paragraph 4-24b(4) provided for final disposition of cases based on final decision by the U.S. Army Physical Disability Agency and the separation of individuals for physical disability without severance pay.

16.  Army Regulation 635-40, paragraph 8-1, states Soldiers of the Reserve Components eligible for processing under this paragraph are those who incur a disability from an injury determined to the proximate result of performing annual training, active duty special work, active duty for training (with or without pay), or a temporary tour of active duty.

17.  The National Heart, Lung, and Blood Institute stated that asthma affects most people of all ages, but it most often starts during childhood.  Asthma can't be cured.  Even when a person feels fine, they still have the disease and it can flare up at any time.  Researchers think some genetic and environmental factors interact to cause asthma, most often early in life.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  However, the available evidence shows a PEB determined his diagnosis of asthma was found to be neither service incurred nor permanently aggravated by military service.  This determination appears to be borne out by available medical research.  It was also determined that no permanent service aggravation resulted in the unnatural progression of his EPTS conditions.  The PEB recommended separation from active duty without disability benefits.  He concurred and elected not to have his case referred to a formal PEB.  He was honorably discharged from active duty on 21 September 2004 in accordance with Army Regulation 635-40, paragraph 
4-24b(4).  

2.  In the absence of evidence to the contrary, he was properly and equitably discharged in accordance with the appropriate regulations.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He concurred with the MEB and PEB findings and recommendations.  Therefore, Items 25 and 28 of his DD Form 214 are commensurate with and corresponds to the reason for his discharge.

3.  There is also no evidence of record and he provided insufficient evidence to show his asthma did not exist prior to his entry on active duty in 2004.  During his 2004 MEB, he stated he had been diagnosed with asthma as a child but outgrew his symptoms in high school.  Therefore, there is an insufficient evidentiary basis to support 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)                                         AR20100024660



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ABCMR Record of Proceedings (cont)                                         AR20100024660


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