BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025486 


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 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a medical reason instead of the current uncharacterized entry. 

2.  The applicant states the current entry does not establish the real fact of his discharge.  The incorrect entry could cost his dependents financial assistance and/or other benefits. 

3.  The applicant did not provide any evidence.

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 he enlisted in the Regular Army on 14 January 1992.  He completed basic combat training at Fort Leonard Wood, MO, on or about 1 May 1992, and proceeded to Fort Lee, VA, for completion of advanced individual training (AIT) in MOS 76P (Materiel Control and Accounting Specialist).

3.  On 22 May 1992, he was seen at the troop medical clinic for wheezing.  The military physician noted the applicant had an extensive history of asthma, onset at approximately age 7.  He had been on multiple medications throughout his life with numerous hospital admissions.  His last hospital admission was 10 years earlier.  He had stopped taking all asthmatic medications on his own and failed to indicate this disease on his enlistment medical examination.  His diagnosis was that of asthma that existed prior to service (EPTS).  His EPTS medical condition did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  The military physician recommended a medical evaluation board (MEB).

4.  On 27 May 1992, an MEB convened at Fort Lee, VA, and after consideration of the clinical records and, laboratory findings, and physical examinations, the board found he had the EPTS medical condition of asthma.  The board recommended his discharge under chapter 5 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  He agreed with the findings and recommendations of the MEB.  

5.  On 22 May 1992, he was counseled regarding his rights.  He indicated that he had been informed of the medical findings.  Additionally, he understood that legal advice of an attorney employed by the Army was available to him or that he may consult with a civilian attorney at his own expense.  He also acknowledged he understood he could request a discharge from the Army without delay or request retention on active duty.  He concurred with the medical findings and requested to be discharged from the Army without delay.  

6.  He further acknowledged if his application for discharge was approved, he understood that he would be discharged by reason of EPTS physical disability and the he would receive a discharge with the appropriate character of service.

7.  On 28 May 1992, a PEBLO (Physical Evaluation Board Liaison Officer) indicated that the applicant had been counseled regarding his EPTS condition and that this condition had been determined by competent medical authorities to be an unfitting condition for continued service pursuant to retention standards in Army Regulation 40-501.  The PEBLO reiterated that the applicant had been counseled and had requested separation by reason of EPTS physical disability.

8.  On 2 June 1992, the separation authority approved the applicants discharge by reason of physical disability for an EPTS condition.  He directed his expeditious discharge with a separation code designator (SPD) of "KFN" and an uncharacterized character of service.

9.  On 9 June 1992, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 5 of Army Regulation 635-40 by reason of a physical disability that existed prior to entry on active duty and that his character of service was "uncharacterized."  It shows he completed a total of 4 months and 26 days of creditable service and that he was not transferred to the U.S. Army Reserve, nor did he have a Reserve obligation termination date.

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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 medical evaluation boards, 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.

11.  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.  

12.  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.  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. 

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-7 provides for the type of administrative discharges and/or character of service.  There are five characters of service:  honorable; under honorable conditions (general); under other than honorable conditions; bad conduct; and dishonorable.

14.  Furthermore, paragraph 3-9 provides for an entry level separation (uncharacterized).  A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case; when Headquarters, Department of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty; or when the Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant suffered from a medical condition – asthma.  His MEB clearly established that he suffered from a disqualifying medical condition that existed prior to his service.  Because this condition was identified within his first 180 days of service, his discharge was appropriately characterized as an entry-level character of service (uncharacterized).

2.  He was counseled regarding his rights and understood that legal advice of an attorney employed by the Army was available to him or that he also could consult with a civilian counsel at his own expense.  He concurred with the recommendation of the MEB and requested discharge from the Army without delay.  All requirements of law and regulation and the rights of the applicant were fully protected throughout the separation process.

3.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an other than honorable conditions discharge. 

4.  The entry-level separation is given regardless of the reason for separation.  This uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

5.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  The applicant has not shown an error or an injustice and he did not provide any evidence or sufficiently mitigating argument to warrant a change in the narrative reason for separation.  Therefore, he 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)                                         AR20100025486



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ABCMR Record of Proceedings (cont)                                         AR20100025486



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