MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 April 2002
         DOCKET NUMBER: AR2002066844

         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. Walter T. Morrison		Chairperson
Mr. Curtis L. Greenway		Member
Ms. Regan K. Smith		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: In effect, that his administrative discharge be changed to a medical discharge.

APPLICANT STATES: That the Army told him he had grounds for a full medical discharge. The Veterans Affairs (VA) took x-rays of his knee and not of his back when he said he had a broken back. He is deaf in the left ear. His two feet are broken down. He has a sleep disorder. He provides no supporting evidence.

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

He was inducted into the Army on 19 May 1970. His Record of Induction, DD Form 47, shows that he was given profiles of L-2 (lower extremities) and H-2 (hearing) but was found to be acceptable for induction. He completed basic combat training. On 21 July 1970, he was given a temporary H-3 profile for a congenital hearing loss (otitis, media serous – inflammation of the ear marked by serous effusion into the middle ear). He completed advanced individual training and was awarded primary military occupational specialty (MOS) 36K (Wireman). Two months later he was awarded primary MOS 36C (Lineman).

On 28 January 1971, the applicant underwent a psychiatric examination. He was found to be mentally responsible both to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board and other proceedings. No evidence of a mental disease, defect, or derangement sufficient to warrant medical disposition was found. He was diagnosed with a character and behavior disorder.

On 8 February 1971, the applicant signed a statement indicating he underwent a separation medical examination more than 3 working days prior to his departure from his place of separation and to the best of his knowledge there was no change in his medical condition. His separation physical is not available. His medical records are not available.

On 2 February 1971, the applicant’s company commander initiated separation action on him under Army Regulation 635-212 for unsuitability. The commander cited 13 counselings on the applicant (the individual counseling statements are not available) and one record of nonjudicial punishment under Article 15, Uniform Code of Military Justice for drunk and disorderly.

On 3 February 1971, the applicant was advised of his rights by counsel. He waived his right to consideration of his case by a board of officers; waived personal appearance before a board; waived representation by counsel; and did not submit a statement in his own behalf.

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On 3 February 1971, the appropriate authority approved the recommendation and directed the applicant be given an honorable discharge.

On 8 February 1971, the applicant was discharged with an honorable discharge under the provisions of Army Regulation 635-212 for unsuitability. He had completed 8 months and 19 days of creditable active service and had 3 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability. The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, alcoholism, and enuresis.

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 regulation in effect at the time, chapter 9, provided for the expeditious discharge of enlisted personnel who were unfit for retention by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay. Any member discharged under the provisions of this chapter could not be considered for any disability benefits administered by the Army. He could; however, apply for compensation, pension, or other benefits administered by the VA.

Army Regulation 40-501 governs the medical fitness standards for enlistment or induction, retention, and separation. The regulation in effect at the time stated that acute or chronic suppurative otitis media or acute or chronic serous otitis media were causes for rejection for enlistment or induction. Paragraph 3-9 stated that moderate, chronic, suppurative otitis media, resistant to treatment and necessitating frequent and prolonged medical care or hospitalization, was a cause for referral to an medical evaluation board (MEB). Serous otitis media was not listed as a cause for referral to an MEB.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. At the time, chapter 5-9.1 provided for the separation of inductees who did not meet the medical fitness standards at time of induction. It stated that such individuals would be released from custody and control of the Army by virtue of a void induction unless their induction was procured by fraud on their part, their conduct subsequent to induction established that they were barred from demanding release from the Army, or they met the medical fitness standards for retention and signed a statement acknowledging eligibility for release from military control but desired retention.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military 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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. There is no available evidence of record and the applicant provides none to show that he had any serious medical condition other than a hearing problem. The Board notes that he was given a temporary H-3 profile for serous media otitis, a congenital hearing loss, on 21 July 1970. As this condition, if known at the time, would have made the applicant unacceptable for induction, it appears that he should have been considered for separation under the provisions of Army Regulation 635-200, paragraph 5-9.1. Since this condition did meet the standards for retention, he would not have been eligible for referral to an MEB (and thus, eventually, to a possible physical disability discharge). There is no evidence of record to show the applicant was offered separation; however, if he had been and had he requested separation he could not be have been considered for any disability benefits administered by the Army.

3. The Army cannot speak for any decisions made by the VA. However, any rating action by the VA does not necessarily demonstrate an error or injustice on part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

4. 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___ __clg___ __rks___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066844
SUFFIX
RECON
DATE BOARDED	20020402
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.