IN THE CASE OF:	  

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016100 


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 his uncharacterized discharge be changed to an honorable discharge by reason of physical disability (medical discharge).

2.  The applicant states that the medical board claimed he had a disability existing prior to service (EPTS) and he has obtained a statement from his doctor proving otherwise.  He never had asthma or any disability prior to his military service and his family doctor who has treated him since he was a child has provided a statement that proves he did not.  He has been to the Department of Veterans Affairs (VA) numerous times and they will not do anything for him.
 
3.  The applicant provides a statement from his family doctor.

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 enlisted in the Regular Army on 9 July 1993 for a period of 
3 years and training as a petroleum supply specialist.  He completed basic training at Fort Jackson, South Carolina and was transferred to Fort Lee, Virginia to undergo advanced individual training.

3.  On 12 November 1993, the applicant submitted a request for separation and waiver of a Physical Evaluation Board (PEB).  He acknowledged that he understood his right to have his case considered by a PEB and elected not to exercise his right.  He also stated that he understood the VA would determine any entitlements to VA benefits.  He further indicated that he understood that if his application for separation was approved he would be separated by reason of an EPTS physical disability.

4.  On 16 November 1993, a Medical Evaluation Board (MEB) convened at Fort Lee.  The Narrative Summary for the MEB indicates the applicant presented with a 4-week history of progressive dyspnea (shortness of breath) on exertion requiring him to drop out of formation physical training after one-half to one mile, as well as severe dyspnea after climbing stairs.  It indicates that his medical history was remarkable for childhood asthma.  The applicant was diagnosed as having reactive airways disease and was determined to be unfit for active duty and recommended for an EPTS separation.  

5.  The MEB recommended he be discharged under the provisions of Army Regulation 635-40, chapter 5, due to EPTS Medical Conditions.  The applicant concurred with the findings and recommendations of the MEB on 18 November 1993.

6.  Accordingly, on 24 November 1993, he was discharged under the provisions of Army Regulation 635-40, chapter 5, due to disability, EPTS – medical board.  He had served 4 months and 15 days of active service and his service was uncharacterized.

7.  The statement, dated 8 July 2013, the applicant provided with his application is from the applicant’s family doctor and indicates the applicant does not now nor has he ever had asthma.

8.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Paragraph 5-11 provides the criteria for the separation of personnel who did not meet procurement medical fitness standards when accepted for enlistment.  It states that medical proceedings must establish that a medical condition was identified by appropriate military medical authorities within 
6 months of initial active duty training which would have temporarily or permanently disqualified the member for entry into military service had it been detected at the time of enlistment.  While an honorable or general discharge may be issued when clearly warranted by unusual circumstances involving personal conduct and performance of duty, personnel who are in an entry-level status (ELS) will receive “Uncharacterized” service.  An honorable discharge is rarely ever granted during the ELS period, which comprises the first 180 days of continuous active service or the first 180 days of continuous active service after a break in service of more than 92 days.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been processed for a medical separation and that his service should be characterized as honorable has been noted and appears to lack merit.  The applicant was diagnosed as having reactive airways disease and it was an EPTS condition.

2.  The applicant submitted a request for separation and waiver of a PEB.  He further indicated that he understood that if his application for separation was approved he would be separated by reason of an EPTS physical disability.  He agreed with the finding of the MEB that his condition was EPTS.  If he believed the MEB was mistaken in finding his asthma to be an EPTS condition he could have disagreed with that finding, not requested separation, and requested consideration by a PEB to fight that finding.

3.  In the absence of evidence to show otherwise, it must be presumed that the applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

4.  Accordingly, he was properly discharged after undergoing the required medical examinations and there is no basis to grant him a medical discharge for a condition he had when he enlisted. 

5.  While the applicant and his family doctor contend that the applicant did not have a medical condition, prior to enlistment it does not account for his repeated bouts of shortness of breath which were evaluated, treated, and diagnosed at the time.  Again, he agreed with the MEB’s finding and waived his right to a PEB.

6.  In regard to his characterization of service, his service was properly uncharacterized due to having served less than 180 days of active service.

7.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant 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 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)                                         AR20130016100



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016100



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1