BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007171 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007171 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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her character of service as honorable or medical instead of uncharacterized. 2. The applicant states she realizes her time in the service was short and ended before she completed 180 days; however, her service ended due to an injury. She states she is a disabled veteran with a 30 percent service-connected disability rating. 3. The applicant provides – * Department of Veterans Affairs (VA) letter to applicant, dated 25 February 2016 * her letter to the State of Wisconsin Department of Veterans Affairs, dated 9 March 2016 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 11 April 1996. 3. A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) confirms an EPSBD met on 5 August 1996 to evaluate the applicant's fitness for service based on a pre-existing condition of exercise-induced asthma. The EPSBD determined the applicant failed to meet medical procurement standards and accordingly recommended her separation from the U.S. Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, due to not meeting procurement medical fitness standards. 4. On 5 August 1996, the EPSBD findings were approved. On 21 August 1996, the applicant concurred with the proceedings and requested discharge from the U.S. Army without delay. Her unit commander also recommended her early discharge. 5. On 23 September 1996, the separation authority approved the EPSBD recommendation for the applicant's separation. On 25 September 1996, the applicant was discharged accordingly. 6. Her DD Form 214 shows she completed 5 months and 15 days of creditable active duty service. Her DD Form 214 also shows in: * item 24 (Character of Service) – Uncharacterized * item 25 (Separation Authority) – AR 635-200, Paragraph 5-11 * item 26 (Separation Code) – JFW * item 28 (Narrative Reason for Separation) – Failure to meet procurement medical fitness standards 7. The applicant provides two letters. a. On 25 February 2016 the VA wrote to the applicant stating she does have a service-connected disability, her combined evaluation is 30 percent, and her current award was effective 1 December 2014. Further, the VA stated the applicant had honorable service from 11 April to 25 September 1996. b. On 9 March 2016 the applicant wrote to her state’s VA office informing them the United States VA deemed her service honorable and she was rated 30 percent service-connected. She requested state benefits. REFERENCES: 1. Department of Defense (DOD) Instruction 1332.38 (Physical Disability Evaluation), in effect at the time, stated service members who are identified with non-waivered EPTS medical conditions or physical defects may be administratively separated without referral into the Physical Disability Evaluation System when the medical impairment: * was identified prior to or within 180 days of the member's initial entry on active duty * did not meet accession standards 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability System and set forth policies, responsibilities, and procedures that were applied in determining whether, because of physical disability, a Soldier was unfit to reasonably perform the duties of his or her office, grade, rank, or rating. a. It stated that, per 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. b. Soldiers who are found to be unfit by reason of a physical disability, neither incurred nor aggravated by service, will be separated. 3. AR 40-501 (Standards of Medical Fitness) governs the medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. The purpose of the standards was to ensure that individuals were free of medical conditions or physical defects which would require excessive time lost from duty or would likely result in separation from the service for medical unfitness. The regulation in effect at the time stated in paragraph 2-23 (Lungs, chest wall, pleura, and mediastinum) that a cause for rejection from enlistment included asthma, including reactive airway disease, exercise induced bronchospasm or asthmatic bronchitis. 4. AR 635-200, in effect at the time, set forth the basic authority for the separation of active duty enlisted personnel. Paragraph 5-11 specifically provided that Soldiers who were 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 were to be separated. a. A medical proceeding conducted by an EPSBD was required, regardless of the date completed, to establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty. Additionally, 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. b. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be shown as uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action (i.e. in an entry-level status). DISCUSSION: 1. The evidence of record shows the applicant was diagnosed with exercise- induced asthma during the first 180 days of her enlistment in the Regular Army. She underwent medical examination and her record went before an EPSBD. The board’s findings and recommendation were approved. She agreed with the board’s findings and recommendation. She requested immediate discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Given the applicant was in an entry-level status at the time of her discharge, her service was uncharacterized as required by regulation. 2. By regulation and DOD instruction, service members who were identified with a non-waivable EPTS medical condition can be administratively discharged without referral into the Physical Disability Evaluation System. The applicant’s exercise-induced asthma was a medical condition that, if known at the time of her initial medical in-processing, would have been a reason to deny her enlistment in the Regular Army. 3. The applicant provides evidence showing she is 30 percent service-connected by the VA and that the VA deemed her service "honorable." The VA, acting under Title 38, United States Code, renders decisions according to their applicable statutes, policies and regulations. The Army operates under Title 10, United States Code. An action by the VA under the auspices of Title 38 is independent of actions taken by the Army under Title 10. As such, actions taken by the VA under Title 38 are not, in and of themselves, evidence of error in actions taken by the Army under Title 10. BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007171 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007171 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007171 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2