IN THE CASE OF:  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20140018278 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by showing he was discharged from the U.S. Army due to a physical disability.

2.  The applicant states his life was under control until he was required to go into the gas chamber, endure stressful physical training, and sit or stand in the rain.  He argues that his bronchial asthma was aggravated by military service.  Accordingly, he believes he should have been discharged based on a medical condition warranting compensation.  He contends that he should never have been inducted into the military service.

3.  The applicant provides copies of:

* Standard Form 88 (Report of Medical Examination) (mostly illegible) 
* Standard Form 89 (Report of Medical History) dated 21 January 1966
* Standard Form 513 (Clinical Record - Consultation Sheet) dated 7 March 1966
* DA Form 8-275-2 (Clinical Record Cover Sheet) dated 1 April 1966
* DA Form 8-275-2 dated 27 April 1966
* Standard Form 88 dated 31 May 1966
* Standard Form 502 (Clinical Record - Narrative Summary) dated 31 May 1966
* DA Form 8-118 (Medical Board Proceedings) dated 1-3 June 1966
* DD Form 214 (mostly illegible)
* Veterans Administration (VA) Form 07-3101 (Request for Information), dated 12 November 1981 (Reverse side illegible)

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 21 January 1966, the applicant underwent a pre-induction medical examination.  In conjunction with this examination, the applicant was required to complete Standard Form 89 by answering yes or no have had or had at the time of examination any of a long list of aliments.  He indicated on this form that he did not have asthma but did experience shortness of breath and pain or pressure in his chest.  The physician found the applicant qualified for induction.

3.  A DD Form 47 (Record of Induction), dated 4 March 1966, indicates that the applicant did not claim to have any physical defects or diseases.  He was found acceptable for induction into the Armed Forces and was accordingly inducted into the U.S. Army on 4 March 1966, and assigned to Fort Jackson, South Carolina.

4.  On 27 April 1966, the applicant was diagnosed with having acute bronchitis with an asthmatic component.

5.  On 31 May 1966, the applicant underwent another medical examination and was found to not be qualified for induction into the military service due to having bronchial asthma.  It was recommended that he appear before a medical evaluation board.

6.  On 31 May 1966, the applicant requested to be discharged from the U.S. Army under the provisions of Army Regulation 635-205 (Personnel Separations), paragraph 3a(6), Convenience of the Government, because he felt he did not meet medical fitness standards at the time of his induction into the U.S. Army.

7.  A DA Form 8-118, initiated on 1 June 1966, indicates that the applicant's bronchial asthma was disqualifying for induction, but was not disqualifying for retention in the military services.  This document further indicates that his medical condition had not been aggravated by his active duty.  He was found fit for duty with assignment limitations that did not include strenuous physical activity, had definitive medical care available.  He was not qualified for service in the Republic of Vietnam.  The findings were approved on 2 June 1966 and the applicant was so informed the next day.

8.  On 7 June 1966, the appropriate authority approved the applicant's request to be discharged.

9.  On 14 June 1966, the applicant was accordingly so discharged.  He had completed 3 months and 11 days of honorable active duty service.  His DD form 214 shows his characterization of service as honorable.  The reason for his discharge was due not meeting medical fitness standards at the time of induction.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

11.  Army Regulation 635-205, chapter 3, as then in effect, set forth the basic authority for the separation of enlisted personnel for convenience of the government.  It stated that inductees who did not meet medical fitness standards at the time of induction could request separation.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected by showing he was discharged from the U.S. Army due to a physical disability.

2.  The available evidence clearly shows that the applicant failed to identify his asthmatic condition at the time of his pre-induction medical examination.  Consequently, he was inducted into the U.S. Army.

3.  The available evidence further shows that the applicant was subsequently reexamined and diagnosed with having acute bronchitis with an asthmatic component.  While his condition should have prevented him being inducted, it was not found to be unfitting for retention but did require assignment limitations.

4.  The applicant requested to be discharged based on his pre-existing medical condition, arguing, in effect, that he should not have been inducted.  His request was approved and he was accordingly so discharged.

5.  There was no error or injustice in what the U.S. Army did.  Furthermore, his DD Form 214 correctly and properly reflects the reason and authority for his discharge.

6.  Because the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for granting him a medical retirement or separation.

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20140018278





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ABCMR Record of Proceedings (cont)                                         AR20140018278



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