MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 July 2001
         DOCKET NUMBER: AR2001054297

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. W. E. Schnupp		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That the reason for his separation be changed to physical disability in line of duty and that he be awarded the Good Conduct Medal (GCM).

APPLICANT STATES: That his hearing was damaged as a result of military service. The disability was so severe, it was a disqualification for further service as a Reserve of the Army. He contends that he was on active duty on the morning of 26 July 1980 when a train derailed near his duty site. One of the train cars exploded and he was exposed to the gases for over an hour. Also, he is hand grenade qualified and an expert marksman and during grenade training the concussion of a grenade explosion knocked him unconscious and injured his shoulder. He believes that either the fumes/gasses, explosion of the train wreck or the grenade blast damaged his hearing. Since his hearing loss occurred during his honorable military service and he has no Article 15’s in his file, he is entitled to a separation for physical disability and a GCM.

In support of his request, he submits a copy of his DD Form 214 (Certificate of Release or Discharge) and accompanying DD Form 215 (Correction of DD Form 214), a copy of his separation physical examination dated 8 August 1980 showing that he was separation with a “2” under the hearing portion of his profile, a statement from a private physician dated 29 January 2001 indicating he had a hearing loss, a copy of NGB Form 22, (Report of Separation and Record of Service) from the Alabama Army National Guard (ARNG) with accompanying corrections showing the awards he received and a copy of a National Transportation Safety Board (NTSB) Railroad Accident Report of a 26 July 1980 train derailment at Fort Knox, Kentucky.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the US Navy on 16 February 1972 and was discharged on 10 March 1972. He subsequently entered the ARNG and on 23 July 1980 was ordered to active duty for training. He was honorably released from active duty on 29 August 1980 because of unsuitability. The narrative reason for his separation was subsequently changed by the Army Discharge Review Board (ADRB) to Secretarial Authority.

Three days after his entry on active duty, the applicant says he was designated to guard a train derailment. According to the NTSB Railroad Accident Report, submitted by the applicant, a train traveling through Fort Knox derailed on 26 July 1980. The report shows that two tank cars of vinyl chloride were punctured, and their contents burned. Flames impinged two other tank cars of vinyl chloride, causing one to vent toxic fumes but neither car ruptured. About 6500 persons



were evacuated from a small town in the vicinity of the wreck and from Fort Knox itself. Four train crewmembers were injured. No other injuries are noted in the report.

On 7 July 1994 the ADRB reviewed the applicant’s request to amend his discharge and correct other matters in his record. The ADRB determined that the reason for his discharge was improperly changed by an authority involved in the discharge process and appropriate entries were not made in the file showing why the changes were made. Consequently, the board determined that the reason for his discharge, “Unsuitability – apathy, defective attitudes or inability to expend effort constructively” as reflected on his DD Form 214, was improper and directed it be changed to “Directed by the Secretary of the Army.” The other matters submitted by the applicant were rejected.

Army Regulation (AR) 600-8-22, Military Awards, provides, in pertinent part, that the Good Conduct Medal is awarded on a selective basis to soldiers who distinguish themselves from among their fellow soldiers by their exemplary conduct, efficiency and fidelity throughout a specified period of continuous enlisted active Federal military service. For first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year. The enlisted person must be recommended for the award and it must be announced in general orders.

AR 40-501, Standards of Medical Fitness, provides in pertinent part, that ordinarily a hearing defect will not be considered sufficient reason for initiating disability separation or retirement processing. When an individual is being evaluated for disability separation or retirement because of other impairments, the hearing defect will be evaluated and considered in computing the total disability.

AR 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. Paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.





DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant was ordered to active duty for the purpose of undergoing training. One month and seven days later he was discharged for unsuitability. Notwithstanding the ADRB’s action to change the reason for his separation to Secretarial Authority based on an administrative error, he was nevertheless separated because of an inability to properly function in the military environment. While he may have had some degree of hearing loss noted at the time of his separation, there is no indication in either the medical or personnel records that his hearing defect incapacitated him and prevented him from performing his duty.

2. Based on the NTSB report he submitted, a train derailment did occur at Fort Knox as he said it did. However, other than his own statement, there is no evidence to show that he was involved in performing guard duty following the derailment. Even if he was, he has presented no evidence and there is none in the record to suggest he suffered any injuries because of his guard duty. Similarly, his contention that a hand grenade explosion may have been the cause of his hearing loss is also not supported by any documentation from him, nor is there any reference to such an accident in his records.

3. The applicant was on active duty from 23 July 1980 to 29 August 1980 and he has provided no medical evidence to show that during that brief time, he incurred a medical condition that was so severe that it rendered him unable to perform his duty. Following completion of his separation physical examination competent medical authority determined he was medically fit for retention or separation. His hearing loss was noted on the examination without comment by the examining physician other than to indicate that he had a “2” under the hearing portion of his physical profile. In the absence of any significant defects, he was appropriately separated from active duty for reasons other than physical disability.

4. Insofar as his request for the GCM is concerned, in addition to not meeting the time frames established for the award, the available record indicates that his performance of duty appears to have been lacking the obligatory exemplary conduct, efficiency and fidelity needed to justify the GCM. In terms of both the quality and quantity of his service, there does not appear to be any grounds for this Board to award the GCM.

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

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__wtm___ ___aao _ ___jtm_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001054297
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010731
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1. 107.00
2. 110.00
3.
4.
5.
6.