IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120001659 


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, an upgrade of his uncharacterized discharge to an honorable discharge.

2.  The applicant states he believes his discharge was in error because he was not informed of the type of discharge he was receiving.  He states he had an issue with his breathing; however, he passed all of the physical and written examinations he received throughout his enlistment.  He further states he was offered the opportunity to change his military occupational specialty, but he was unsure of what to do and he was ultimately discharged prior to making a decision. 

3.  The applicant provides no additional 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 8 November 1994 for a period of 3 years and 17 weeks within career management field          11 (Infantry).  

3.  In the seventh week of basic combat training at Fort Benning, GA, the applicant was evaluated by physicians.  The subjective findings revealed the applicant presented with shortness of breath and trouble breathing since the start of basic combat training, due to a history of asthma.  He was unable to train because of this problem.  His DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 9 November 1994, shows:

	a.  He was diagnosed as having a history of asthma at age 8 or 9 with no problems since then until now.  

	b.  The attending physician remarked on the DA Form 4707 that the applicant was positively diagnosed with asthma and did not meet medical fitness standards for enlistment.  It was also determined that his condition existed prior to service (EPTS).  However, his condition did not disqualify him from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The recommendation was that the applicant be separated from military service.

4.  On 22 January 1995, the medical approving authority approved the findings of the EPSBD.   

5.  On 25 January 1995, the applicant concurred with the recommendation of the EPSBD and requested discharge from the Army without delay under the provisions of paragraph 5-11 of Army Regulation 635-200 (Personnel Separations).  Item 21 (Action by Service Member) of the DA Form 4707 shows the applicant understood that legal advice of an attorney employed by the Army was available to him and that he also could consult with civilian counsel at his own expense.  He further authenticated the document with his signature.

6.  On 25 January 1995, the applicant's immediate commander recommended that the applicant be discharged and on 30 January 1995 the discharge authority approved the applicant's separation.  



7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 6 February 1995 under the provisions of paragraph 5-11 of Army Regulation 635-200, by reason of failure to meet procurement medical fitness standards with an "entry level status" (uncharacterized) character of service.  He completed 2 months and 29 days of creditable service.

8.  Army Regulation 635-200 sets forth the basic authority for 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 conducted by an EPSBD, 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 the time of enlistment, and 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 will normally be honorable, but will be uncharacterized (entry level status) if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action.

9.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It provides, in pertinent part, that an uncharacterized separation is an entry-level separation.

	a.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when the characterization of under other than honorable conditions is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  

	b.  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.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was found medically unqualified for service shortly after reporting for basic combat training.  The EPSBD proceedings clearly established that he suffered from a disqualifying EPTS condition.  Because this condition was identified within his first 180 days of service, his service was appropriately uncharacterized.  

2.  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 under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  

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

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His service is uncharacterized, which is appropriate in his case.  

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)                                         AR20120001659



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ABCMR Record of Proceedings (cont)                                         AR20120001659



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