ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20160016477 APPLICANT REQUESTS: his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 12 February 2009, be voided. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 28 September 2016 * DD Form 4, dated 12 February 2009 * DD Form 4, dated 18 September 2012 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His DD Form 4, dated 12 February 2009, shows he is a first term enlistee; however, his DA Form 3540 (Certificate and Acknowledgment – U.S. Army Reserve Service Requirements and Methods of Fulfillment), dated 12 February 2009, shows he was prior service. b. He was released from military service due to the military finding he had asthma. He disproved this and he was allowed to get back into the U.S. Army Reserve. For this reason, he believes his first enlistment contract should be voided. c. He never finished basic training until his second enlistment. d. He now holds two military occupational specialties and he has passed the promotion board for Sergeant. 3. Review of the applicant's service record shows: a. On 12 February 2009, the applicant enlisted in the Regular Army. b. His DA Form 3540, dated 12 February 2009, shows he acknowledged his U.S. Army Reserve service requirements and methods of fulfillment and this was his initial enlistment as a non-prior service applicant. c. On 23 July 2009, he was issued a DA Form 3349 (Physical Profile) for existed prior to service asthma. d. On 24 July 2009, a clerk from the Patient Administration Division, Headquarters, U.S. Army Medical Department Detachment, Patient Affairs, Fort Leonard Wood, MO, notified his command that he had a medical condition/physical impairment which, had it been identified, would have precluded his current enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, and he was being referred for an administrative discharge in accordance with Army Regulation 635-200, paragraph 5-11. On the same date, he acknowledged his discharge would be an administrative discharge. e. His DA Form DA Form 4856 (Developmental Counseling), dated 24 July 2009, shows he was advised of his recommendation for separation from service for a medical or physical impairment that existed prior to service. He was also advised that it would be unlikely that any attempt to have his characterization of service would be successful. He acknowledged receipt of the counseling on 24 July 2009. f. His DA Form 4856, dated 28 July 2009, shows he was counseled on the approval of his separation from the service under the provisions of Army Regulation 635-200, paragraph 5-11, and Army Regulation 40-501, chapter 2. He acknowledge receipt and concurred with the counseling. g. His DA Form 4187 (Personnel Action), dated 29 July 2009, shows he was reassigned to the Replacement Holding Unit, 43rd, Adjutant General Battalion, 3rd Combat Medical Brigade, for separation under the provisions of Army Regulation 40-501, paragraph 5-11, effective 3 August 2009. h. His DA Form 4707-E (Entrance Physical Standards Board Proceedings), dated 4 August 2009, shows he was evaluated for shortness of breath. The form also shows: (1). He arrived at Fort Leonard Wood, MO, on 17 June 2009. (2) He complained of chest tightness, shortness of breath, wheezing, and coughing spells with increased activity. His symptoms begin within 2 minutes of beginning increased activities and resolve within 5 to 6 minutes after stopping despite his use of Advair and albuterol over the past 4 weeks. (3) His medical history. "Significant for reactive airway disease diagnosed when he was 16 or 17 years old by emergency room staff. The Soldier admits he had to quit playing tennis because of his dyspnea on exertion. He further admits he had to report to a local hospital prior to shipping to Fort Leonard Wood (FLW) for asthmatic-type symptoms in which they had desire to place the Soldier on a home nebulizer treatment, but the [S]oldier refused that care since was scheduled to report to Fort Leonard Wood (FLW) two days later. The Soldier was evaluated and given a diagnosis of reactive airway disease once he arrive at Fort Leonard Wood (FLW). He was placed on albuterol and Advair and encouraged to continue his normal daily duties as a trial of training. The Soldier returned to the clinic today stated he was unable to keep up with his duties despite his use of the above mentioned medication. He was diagnosed with asthma, moderate persistent. (4) He was recommended for discharge under the provisions of Army Regulation 40-501, chapter 2, and he was encouraged to continue with this normal daily duties to the best of his ability while pending medical board action. He was given a refill for his Proventil, Advair, and Singulair. (5) The hospital commander approved the findings. The applicant concurred with the proceedings and requested to be discharged from the Army without delay. (6) The separation authority approved the findings and directed the applicant's discharge. i. On 7 August 2009, he was discharged under the provisions of Army Regulation 635-200, chapter 11. His DD Form 214 for the period ending 7 August 2009 shows his service was uncharacterized, his narrative reason for separation was listed as "Entry Level Performance and Conduct," and his separation code was listed as "JGA." j. His DD Form 214 also shows he had 1 month and 22 days of net active service this period and he had 4 months and 4 days of total prior inactive service. k. On 23 November 2010, the ABCMR partially granted the applicant request and directed correction of his DD Form 214 to show he was separated under the provisions of Army Regulation 635-200, chapter 5, his separation code as "JWK," and his narrative reason for separation as "Failure to Meet to Procurement Medical Fitness Standards." l. On 18 September 2012, he enlisted in the U.S. Army Reserve for a period of 6 years. m. His DA Form 3540, dated 18 September 2012, shows in Section IV (Service Obligation), the statement, "ENLISTMENT OF A FORMER MEMBER OF THE ARMED FORCES HAVING NO REMAINING STATUTORY MILITARY SERVICE OBLIGATION. I am current not a member of the U.S. Army Reserve. I have had previous military service in the Armed Forces of the United States. When last discharged I had satisfactorily fulfilled my [blank] incurred statutory military service obligation. I have enlisted in the U.S. Army Reserve for the term of service stipulated on the enlistment document to which is attached." n. On 22 January 2013, he was ordered to active duty for training and on 6 June 2013, he was honorably released from active duty training. o. On 13 September 2018, he reenlisted in the U.S. Army Reserve for a period 6 years which created a service obligation until 17 September 2024. 4. By regulation (AR 635-200): a. 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, 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 AR 40-501, chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. b. A member's service is under review during the first 180 days of continuous active military service. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the documentary evidence provided and found within the military service record, the DD Form 4 appears to align with a term of service of the applicant. Based upon a preponderance of evidence, the Board determined the justification for voiding the document requested by the applicant was insufficient to show an error or injustice which would warrant such action. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 10/21/2019 CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Records, including the Official Military Personnel File (OMPF). Paragraph 1-6b(1) states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, and any other personnel actions. This regulation also states the DD Form 4 and DA Form 3540 are required documents to be filed in the OMPF. 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for separation of enlisted personnel. a. 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, 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 if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. b. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.