IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130006369 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his character of service as honorable.

2.  The applicant states he needs to resolve the status of his service characterization (honorable or dishonorable) for application for membership in The American Legion.

3.  The applicant provides:

* his DD Form 214 for the period ending 28 February 1983
* a letter from the National Personnel Records Center, St. Louis, MO, dated 1 March 2013
* an undated statement from the Post Adjutant of American Legion Post 555

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.  On 8 February 1983, he enlisted in the Regular Army.

3.  On 18 February 1983, an Entrance Physical Standards Board (EPSBD) found the applicant had a history of asthma since age 11 with multiple medications.

	a.  Subjective findings included shortness of breath and asthma for 7 years.  He was seen in the emergency room on 12 February 1983 because he was panting and became dizzy with shortness of breath.

	b.  Objective findings included bilateral wheezes present on chest auscultation.

	c.  The diagnosis was asthma, medically unfit for enlistment in accordance with paragraph 2-26b of Army Regulation 40-501 (Standards of Medical Fitness).

	d.  The applicant was given a physical profile rating of 3 for physical capacity or stamina with no strenuous physical activity indicated.

	e.  The findings were approved on 18 February 1983.

4.  On 18 February 1983, the applicant acknowledged he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he could consult a civilian attorney at his own expense.  He was further advised that he could request discharge from the Army without delay or retention on active duty.  The applicant concurred with the proceedings and requested discharge from the Army without delay.

5.  On 28 February 1983, he was discharged by reason of failure to meet procurement medical fitness standards – no disability.  He completed 21 days of active service that was uncharacterized.

6.  Army Regulation 40-501 prescribes the medical conditions and physical defects which are causes for rejection for appointment, enlistment, and induction into military service.  Paragraph 2-26 states that one of the causes for rejection for appointment, enlistment, and induction is bronchial asthma, except for childhood asthma with a trustworthy history of freedom from symptoms since the 12th birthday.

7.  Army Regulation 635-200 (Personnel Separations), then in effect, provided the basic authority for the separation of enlisted personnel.  Chapter 5 provided for separation for the convenience of the government.

	a.  Paragraph 5-5 stated personnel being separated under this section would be awarded a character of service of honorable, under honorable conditions, or an entry-level separation.

	b.  Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment would be separated.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military authority within 4 months of the member's initial entrance on active duty which:

* would have permanently disqualified him or her for entry into military service had it been detected at that time
* does not disqualify him or her for retention in military service under the provisions of Army Regulation 40-501, chapter 3

	c.  Paragraph 3-9 states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status.

	d.  The glossary defines entry-level status as the first 180 days of continuous active military service.

DISCUSSION AND CONCLUSIONS:

1.  An EPSBD established the applicant had suffered from asthma since age 11 with multiple medications.  The EPSBD also determined he was medically unfit for enlistment in accordance with Army Regulation 40-501.

2.  The applicant concurred with the EPSBD proceedings and requested discharge from the Army without delay.  Therefore, his administrative separation was accomplished in compliance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

3.  Because he completed only 21 days of active service, he was in an entry-level status.  Therefore, the characterization of his service is correct.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  
4.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The reason for his separation was appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130006369



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ABCMR Record of Proceedings (cont)                                         AR20130006369



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