IN THE CASE OF:	  

		BOARD DATE:  26 April 2012

		DOCKET NUMBER:  AR20110020442 


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, a medical discharge.

2.  The applicant states:

	a.  He enlisted with intent to serve a minimum of a full-term.  His medical condition developed during training through no fault of his own.  Failure to change the type of separation to medical unjustly denies him Department of Veterans Affairs (VA) benefits that he normally would have received had his medical conditions not developed while on active duty.

	b.  He was fully qualified medically to serve in the military upon his enlistment. 
He believes the Board should find in his favor as it is unjust to deny him educational benefits when the VA has already awarded him a 30-percent service-connected disability rating based on the same medical evidence provided in this request.

3.  The applicant provides:

* DD Form 2808 (Report of Medical Examination)
* DD Form 2807-1 (Report of Medical History)
* DD Form 2807-2 (Medical Prescreen of Medical History Report) 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Entrance Physical Standards Board (EPSBD) Proceedings (front page)
* VA Rating Decision
* letters from and to the Army Review Boards Agency

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 DD Form 2808, dated 12 July 2004, shows he was found qualified for enlistment in the Regular Army (RA).  A DD Form 2807-1, dated 12 July 2004, shows, in part, he had nasal congestion around hay and horses.

3.  The applicant's military record shows he enlisted in the RA in pay grade E-1 on 7 September 2004 for 3 years.

4.  On 24 November 2004 during basic combat training, the applicant underwent an EPSBD for asthma.  The board proceedings show he complained of chest tightness and shortness of breath with any and all increased activities.  The symptoms began within approximately 5 minutes of increased activity and resolved approximately 30 minutes after cessation.  He revealed no history of the problems existing prior to service (EPTS) and no previous hospitalization.  He was diagnosed with moderate, persistent asthma.  The EPSBD recommended his separation from the Army for failure to meet medical procurement standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-23d.

5.  There is no indication of the applicant's concurrence or nonconcurrence with the findings and recommendation of the EPSBD.

6.  The EPSBD was approved on 3 December 2004.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 which shows he was discharged in pay grade E-2 on 13 December 2004 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 
paragraph 5-11, by reason of failure to meet procurement medical fitness standards.  He did not complete advanced individual training and he was never awarded a military occupational specialty (MOS).  His character of service was uncharacterized.  He was credited with completing 3 months and 7 days of net active service with no lost time.  His character of service was uncharacterized.

8.  On 19 November 2010, the VA awarded him a 30-percent service-connected disability rating for asthma.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-11 specifically provides that Soldiers who are 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 will be separated.  A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 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 that the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.  The characterization of service for Soldiers separated under this provision of the regulation will normally be honorable, but will be uncharacterized if the Soldier is in an entry-level status.  Army Regulation 635-200 states a Soldier is in an entry-level status if the Soldier has not completed more than 180 days (6 months) of creditable continuous active duty prior to the initiation of the separation action.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3.

11.  Army Regulation 635-40 also states 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.  Army Regulation 40-501, paragraph 2-2(1)c, states an enlisted Soldier identified within the first 6 months of active duty with a condition that is EPTS that does not meet the standards of chapter 2 may be separated following an evaluation by an EPSBD in accordance with Army Regulation 635-200, chapter 5.  Paragraph 2-23d provides for separation for asthma.

13.  According to the U.S. Department of Health and Human Services 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.  Nearly 6 million of these people are children.  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, and 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 breathes.  Different factors may be more likely to cause asthma in some people than in others.

14.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for military service.  It awards disability ratings to veterans for conditions it determines were incurred during military service and subsequently affect the individual's civilian employability.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant underwent an EPSBD and was diagnosed with asthma within 6 weeks of his voluntary enlistment.  The EPSBD recommended his discharge in accordance with Army Regulation 40-501, paragraph 2-23d, for asthma.  The EPSBD was approved on 3 December 2004.  There is no evidence of the applicant's concurrence and nonconcurrence with the EPSBD findings and recommendation.

2.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  In accordance with regulatory guidance, a medical proceeding, regardless of the date completed, must establish that a medical condition was identified by an appropriate medical authority within 6 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 that the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3.

3.  Without evidence to the contrary, it appears he was discharged based on the findings of an EPSBD.  It is presumed the EPSBD found that his medical condition was not medically unfitting for retention in accordance with Army Regulation 40-501; therefore, there was no basis for medical retirement or separation.

4.  The disposition of Soldiers who are found not to meet the Army's procurement medical fitness standards is through administrative separation and not through the Army's PDES.  As such, he was properly and equitably discharged in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  He provided insufficient evidence and there is no evidence of record to support his contention he should have received a medical discharge.

6.  The VA rating decision provided by him was also carefully considered.  However, the award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service connected.  In this case, he was properly evaluated and is being compensated for his service-connected medical condition by the VA.  There is no indication he suffered a disabling condition while in a qualifying duty status that would have supported his processing for retirement through medical channels; 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 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)                                         AR20110020442



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ABCMR Record of Proceedings (cont)                                         AR20110020442



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