MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 January 2002
         DOCKET NUMBER: AR2001062360

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Roger W. Able		Member
Mr. Terry L. Placek		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 records of her deceased spouse, a former service member (FSM), be corrected to show he was discharged from the Army National Guard (ARNG) for minority with an honorable discharge, that his discharge from the U. S. Army Reserve (USAR) be changed to a physical disability discharge, and that his service medical records be amended to reflect service-connected acoustic trauma and hearing loss.

APPLICANT STATES: That the FSM was born on 28 October 1937 despite the fact that his Report of Separation, NGB Form 22, shows he was born a year earlier. Through negligence in failing to obtain proof of the FSM’s age, the recruiter allowed him to enlist in the Missouri ARNG on 7 July 1954 at age 16. Therefore, he had leave to be absent from military duty in that a minor cannot be on military duty. Despite this, the FSM was discharged from the ARNG and transferred to the USAR, where he served honorably. Moreover, the FSM incurred a hearing loss while in the USAR which was not documented. No routine measures were taken at the time to protect his hearing and he was not given a proper physical evaluation at the time of his discharge. Accordingly, he was denied Department of Veterans Affairs (VA) benefits attributable to his hearing loss. Presumably his records, including his service medical records, were lost or destroyed in 1973. Despite this, the FSM’s last attending physician opined that it was at least as likely as not that the FSM’s hearing loss was service-connected. She is not seeking any monetary compensation from the Army but merely a correct service record so as to permit her to establish the FSM’s entitlement to VA benefits at the time of his passing. She provides an original birth certification showing the FSM’s birth date as 28 October 1937, his NGB Form 22, his Honorable Discharge Certificate from the USAR, their marriage certificate, proof of death, the FSM’s statement in support of his VA claim, her statement in support of his VA claim, and the FSM’s physician’s statement in support of his claim as supporting evidence.

EVIDENCE OF RECORD: The FSM’s military records were lost or destroyed in the National Personnel Records Center fire in 1973. Information contained herein was obtained from alternate sources.

The FSM’s NGB Form 22 shows he was born on 28 October 1936 and enlisted in the Missouri ARNG on 7 July 1954 at age 17. He was discharged from the ARNG on 5 February 1955 with a general under honorable conditions discharge and transferred to the USAR by reason of continued absence from military duty. He had earned 37 points during his time in the ARNG. His civilian occupation is listed as truck driver.

The provided original birth certification shows the FSM was born on 28 October 1937, making him age 16 at the time of his enlistment in the ARNG and age 17 at the time of his discharge from the ARNG.

The FSM and the applicant married on 12 January 1957.

The FSM was honorably discharged from the USAR on 10 October 1962.

In his statement in support of his VA claim, the FSM contended that he was routinely exposed to loud noise from diesel engines while on training in the ARNG and the USAR. During one training cycle, while he was standing beside a large field artillery piece, it discharged unexpectedly causing him complete deafness for many days. He was not afforded medical care after this incident. No hearing protection was issued to him before or during this incident. His hearing worsened since the incident.

In her statement in support of the FSM’s VA claim, the applicant contended the incident occurred after the FSM had been recalled to duty during the Bay of Pigs incident.

In his statement in support of the FSM’s VA claim, his attending physician opined on or about April 1998 that he examined the FSM’s ears and noted an apparent prior surgery on his ears. He noted that it is a commonly accepted and well-documented medical fact that routine unprotected exposure to loud noises, such as from working in close proximity to diesel engines, causes impaired hearing. He noted that it is an equally medically accepted fact that unprotected exposure to the detonation of a field artillery piece nearby would render the FSM immediately unable to hear and would undoubtedly either cause permanent hearing loss or, at the very least, permanently aggravate hearing loss in an individual who was already hearing impaired. He further concluded that the FSM’s hearing loss was, at least and in part, the result of unprotected exposure to loud noise from working in close proximity with diesel engines and artillery while in the military.

Army Regulation 615-362 at the time provided authority governing the separation of enlisted personnel from military service by reason of minority, dependence, and hardship. Paragraph 3c(1) stated that an enlisted member of the National Guard, the National Guard of the United States, and the Army Reserve who enlisted under the age of 17 at the date of enlistment would be discharged unless he had reached his 18^th birthday. Paragraph 4a(2) stated that, unless under charges or in confinement for a serious offense, an enlisted man who was under 17 years or age at the time of enlistment or induction and who had not yet reached the age of 18 years would be discharged upon receipt of satisfactory evidence as to the date of his birth, regardless of whether he enlisted with or without the consent of his parents or guardian. Paragraph 12 stated that notwithstanding the fact that enlistment may have been obtained by misrepresentation as to age or consent of parents or guardian, an Honorable Discharge Certificate or a General Discharge Certificate would be given to reflect the character of service performed since entry.
Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

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 Board notes that the FSM was only 16 years of age at the time of his enlistment in the ARNG. However, it appears he successfully served long enough in the ARNG for him to earn 37 retirement points and presumably understand that being absent from military duty was not tolerable conduct and could result in certain consequences. If the FSM had been discharged for minority, in accordance with regulatory guidance he could still have received either an honorable or a general discharge under honorable conditions. Considering the FSM’s presumed understanding of military standards and discipline and his failure to follow those standards through his continued absence from military duty, the Board concludes that the type of discharge given would have been appropriate even had the reason for discharge been minority.

2. It appears the FSM elected not to disclose his age even when he was discharged from the ARNG and was transferred to the USAR at the age of 17, choosing to serve in the USAR, evidently in a successful manner, until his discharge from the USAR in October 1962.

3. The FSM’s military service records and medical records are not available but the applicant contends the FSM’s hearing was damaged after he had been recalled to active duty during the Bay of Pigs incident. Unfortunately, there is no contemporaneous evidence of military medical treatment from immediately after the incident or of his seeking treatment for hearing loss resulting from this incident from a civilian physician immediately after his release from active duty. In addition, there is no evidence to show that the FSM’s military service was impaired by a hearing loss problem.

4. The Board notes that the FSM’s civilian occupation was listed as truck driver on his NGB Form 22. In addition to his attending physician’s unsupported speculation in 1998 that the FSM’s hearing loss was the result of his military service, there is no evidence to show that his hearing loss was in fact the result of his military service or that it could not have been the result of his civilian occupation. In the absence of evidence to the contrary, it is presumed that the FSM’s separation was conducted in accordance with law and regulations applicable at the time. In the absence of evidence concerning the FSM’s hearing loss and the nonavailability of his service medical records, it is not possible to correct those medical records.

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

__lls___ __rwa___ __tlp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062360
SUFFIX
RECON
DATE BOARDED	20020108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	108.00
3.	124.03
4.
5.
6.