BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020398 


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, that the type of separation, character of service, and narrative reason shown on his discharge document be changed to make him eligible for veterans' benefits.   

2.  He states that on his entrance application, he indicated that he had asthma throughout his childhood years.  He was permitted to enlist.  During basic combat training, the strenuous training aggravated his asthma and he was ultimately discharged for this reason.  The examining physician confirmed this information on his entrance examination, signed his release from training and his discharge from the Army.

3.  He contends his entire intention was to have a career in the military; however, when his asthma flared up, he was medically discharged.  He was obedient and followed protocol and had no disciplinary problems whatsoever.  The injustice of not being able to receive his benefits should not be attached to something he did not try to hide.

4.  He did not provide any additional documentation.  

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 18 October 1994, completed during the applicant's pre-enlistment medical examination, shows the applicant indicated he had Tuberculosis, Asthma and Shortness of Breath in item 11 (Have You Ever Had or Have You Now) (this item includes an extensive list of medical conditions).

3.  On 18 October 1994, he enlisted in the Army National Guard for a period of 
8 years.  He entered active duty for training on 14 May 1995. 

4.  A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 16 June 1995, shows an EPSBD found the applicant was medically unfit for enlistment in accordance with current medical fitness standards.  It also shows the applicant was diagnosed with asthma which existed prior to service.  The EPSBD recommended the applicant be separated from the U.S. Army under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2-24d (should have read chapter 2-23d).  

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

    b.  On 26 June 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 the same day, the company commander recommended approval.

    d.  On 28 June 1995, the separation authority directed that the applicant be discharged from the Army.

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty on 6 July 1995 and transferred to the Louisiana ARNG, after completing 1 month and 23 days of net active service.  It also shows in:

* item 24 (Character of Service) – Uncharacterized
* item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11
* item 28 (Narrative Reason for Separation) - Failure to meet procurement medical fitness standards

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 5, paragraph 5-11 specifically 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, active duty for training, or initial entry training would be separated.  A medical proceeding, regardless of the date completed, must have established that a medical condition was identified by appropriate medical authority within six months of the Soldier’s initial entrance on active duty.  The characterization of service for Soldiers separated under this provision would be uncharacterized if the Soldier had not completed more than 180 days of creditable continuous active duty prior to the initiation 

7.  Chapter 2 of Army Regulation 40-501, in effect at the time, governed medical fitness standards for induction, enlistment, and appointment in the U.S. Army.  Paragraph 2-23d pertained to asthma and included reactive airway disease, exercise-induced bronchospasm or asthmatic bronchitis.  Persons reliably diagnosed and symptomatic at any age did not meet the standard for enlistment. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his character of service or type of discharge in order to make him eligible for veterans' benefits was carefully considered. 

2.  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 asthma medically disqualifying under procurement medical fitness standards.

    b.  The applicant concurred with the EPSBD proceedings on 26 June 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.  As such, there is no error or injustice on the part of the U.S. Army as it pertains to his ineligibility for veterans' benefits.

4.  In view of the foregoing, there is no basis to grant the 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)                                         AR20110020398





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ABCMR Record of Proceedings (cont)                                         AR20110020398



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