RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        02 AUGUST 2005
      DOCKET NUMBER:  AR20040010117


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be compensated for his
service connected hearing loss between his 1943 discharge from the Army and
receipt of disability compensation by the Department of Veterans Affairs in
2002.

2.  The applicant states, in effect, that his hearing and physical
condition was
“A-1” when he entered the Army in 1943 and that he now needs his 1943
discharge corrected to show that he incurred a severe hearing loss “in
service with the 194th Glider Infantry at the side of heavy artillery
firing July 24, 1943 in World War 2.”  He states that his records reflect
false information, which the Department of Veterans Affairs has used to
deny him benefits for 59 years.  He states that his discharge shows that he
was discharged with a “certified disability” but that it should show he was
discharged because of his service incurred hearing loss.  He notes that his
discharge document shows that he was not wounded during World War II when
in fact he sustained severe hearing loss in July 1943.

3.  The applicant states that his induction physical shows that he had
perfect hearing and that his incorrect discharge has caused him to be
denied benefits for 60 years.  He states the inaccurate information has
allowed the Department of Veterans Affairs “to falsify and fabricate
medical dates.”

4.  The applicant provides a copy of his induction physical examination,
copies of medical treatment forms from his service medical records, on
which he has written that either the information is false or that it
supports his contention that he should have been receiving disability
compensation since his discharge.  He also submits a copy of his Honorable
Discharge document on which he noted that some of the information on the
form is false, including the entry that he received no wounds during World
War II and that his physical condition when discharged was fair.  He
submits a copy of a 1943 “certificate” showing he declined to file a claim
for a pension.

CONSIDERATION OF EVIDENCE:

1.  The applicant submitted an original application to the Board regarding
this same subject in October 2003.  It was closed administratively noting
that no effective relief could be granted.  Because of the extensive
arguments made in his recent application, review by the Board of his
current application is warranted.


2.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

3.  Documents available to the Board indicate that the applicant was
inducted on
8 April 1943.  A physical examination, conducted as part of his induction
process, found that the applicant was “physically and mentally qualified
for general military service.  His hearing in both ears was recorded as
15/15.

4.  The applicant’s service medical records indicate that by 14 June 1943
he was referred to the EENT (Ears, Eyes, Nose, Throat) clinic for an “ear
consultation.”  The referring physician noted a history of hearing loss and
“diplacusis” (an aural deficiency in which the pitch of a single tone is
heard doubly; i.e. as two different pitches) following exposure to gunfire
“several days ago.”  The physician noted that the applicant’s eardrums
appeared normal but that the applicant had a family history of hearing
loss.

5.  On 19 July 1943 the applicant complained of ringing in his ears and on
26 July 1943 he was transferred from his unit, the 194th Glider Infantry,
to the Station Hospital at Camp Mackall, North Carolina with a diagnosis of
bilateral deafness, “cause and type” was undetermined.  The 26 July 1943
medical treatment document notes “EPTI,” a notation that the condition
existed prior to the applicant’s induction.  The applicant’s hearing had
deteriorated from the 15/15 rating in both ears to a rating of 7/15 in the
right ear and 3/15 in the left.  That same treatment record also indicated
that the applicant had reported poor hearing since “10 years of age.”

6.  On 13 August 1943 the applicant signed a certificate indicating that he
had been informed of his rights to file a claim for pension, as required by
paragraph 12 and 16d(1) of Army Regulation 615-360, but declined to file a
claim for the same.

7.  Paragraphs 12 and 16d(1) of Army Regulation 615-360, in effect at the
time, outlined the statutory provisions for pensions and indicated that for
disabilities resulting from personal injury or disease contracted in line
of duty or for aggravation of a pre-existing injury or disease contracted
or suffered in the line of duty when such a disability was incurred in or
aggravated by active military or naval service other than in a period of
war service, the United States will pay to any person thus disabled and who
was honorably discharged from such period of service in which said injury
or disease was incurred or preexisting injury or disease was aggravated, a
pension, unless assistance is declined by the enlisted man.  It also notes
that no pension shall be paid if the disability was the result of the
enlisted man’s own misconduct, or if existing prior to enlistment or
induction, and it was not aggravated by active military service.
Applications for pension, for eligible Soldiers, were mailed to the
Veterans Administration.

8.  By 18 August 1943 the applicant’s service medical records indicate that
it was determined that the applicant’s hearing was such that he should be
discharged from “the service on a certificate of disability” due to his
diagnosis of bilateral deafness.

9.  On 18 August 1943 the applicant was honorably discharged.  His
discharge document notes that he qualified as a marksman with the M-1 rifle
on 15 June 1943.  The applicant argues that this is further evidence that
he was doing fine.  His overall physical condition when discharged was
recorded as “fair,” and the reason for his discharge is recorded as “CDD”
(certificate of disability for discharge).  A CDD was a statement declaring
that a Soldier was permanently unfit for military service and should be
discharged.

10.  The entry regarding “wounds” on his separation document reflects
“None.”  This entry was not meant to record medical conditions which might
have been the basis for a CDD, but rather was intended to note wounds
incurred as a result of action with enemy forces.

11.  Prior to 1 October 1949, on which date the Career Compensation Act of
1949 became effective; there were no provisions of law whereby an enlisted
person with less than 20 years of military service could be retired from
the Army by reason of physical disability.  Under then existing law,
compensation and pension for service-connected disabilities, or pre-
existing disabilities that had been aggravated by active service, were
under the sole jurisdiction of the Department of Veterans Affairs and not
the Army.

12.  According to the copy of the Department of Veterans Affairs rating
decision, provided by the applicant in support of his request, he was
granted a 100 percent service connected disability rating for bilateral
hearing loss effective on
26 February 2002.

13.  Documents provided with his original application to the Board indicate
that the applicant submitted his claim for service-connected compensation
on
2 November 2000.  The rating decision also noted that “reconsideration will
be given for an earlier effective date for entitlement to service connected
for hearing loss when additional audiology test results…from September 22,
1969 to present have been received.”

14.  Title 38, United States Code, Section 5110, notes that the effective
date of an award of disability compensation to a veteran shall be the day
following the date of the veteran’s discharge if (emphasis added) the
application for compensation is received within one year from such date of
discharge.  When not received within one year, it states that the effective
date of an award based on an original claim, a claim reopened after final
adjudication, or a claim for increase, of compensation or pension, “shall
be fixed in accordance with the facts found, but shall not be earlier than
the date of receipt of application therefore.”

DISCUSSION AND CONCLUSIONS:

1.  While the applicant argues, in effect, that his 1943 discharge from the
Army should specifically show that he was discharged because of severe
hearing loss he claims resulted from his military service, the evidence
available to the Board shows that his discharge does show that he was
discharged with a CDD.  The basis for the CDD was recorded in his service
medical records and as such, there was no basis to specify on his discharge
document the basis for the CDD. Whether the basis for the CDD was a service
connected disability, a pre-existing disability, or a service aggravated
disability, it would still not have been recorded on an individual’s
separation document.

2.  He has provided no evidence to contradict the entry of “fair” on his
separation document regarding his overall physical condition at the time of
separation, or that he was wounded as a result of hostile action.  Hence no
error or injustice exists on his separation document.

3.  The basis for the hearing score of 15/15 on the applicant’s induction
physical examination cannot be explained.  The absence of the specific
test, which may have served as the basis for that score, makes it
impossible to determine now, more than 60 years after the fact, how the
score was achieved.  The evidence does, however, indicate that in less than
3 months after entering active service the applicant’s hearing had
deteriorated to such a point that discharge was warranted.  The notations
in those records, that the applicant had a family history of hearing loss
and that he himself had experienced hearing trouble since he was 10, does
suggest that the hearing score reflected on his induction physical may have
been erroneous or inaccurate.



4.  Had the applicant experienced some sort of trauma to his ears, been
exposed to some single deafening blast, or to a constant elevated noise
level since his induction, which might have explained the significant
change in his hearing level, it would have been reasonable to expect that
such a condition would have been noted in his medical treatment forms.  The
absence of such a comment supports a conclusion that such event did not
occur.  The single notation on his 14 June 1943 medical treatment form that
he showed signs of diplacusis “following exposure to gunfire several days
ago” does not appear to have been significant enough for medical officials
to confirm that his bilateral deafness resulted from that exposure.
Rather, then continually noted in his medical treatment forms that the
cause and type of his hearing loss was “undetermined.”

5.  The applicant has not provided any medical evidence, beyond his own
ascertains, that his hearing loss was directly related to his military
service.  In the absence of such evidence, there is no basis to change or
correct any of the information in his military service medical records.

6.  Notwithstanding the foregoing, the fact remains that disability
compensation was under the purview of the Department of Veterans Affairs at
the time of his discharge.  Regardless of the source of his disability, the
applicant could only have received compensation commencing with his
discharge in 1943 from the Department of Veterans Affairs, and then only if
such an application was made within one year of his 1943 discharge.  The
evidence does show that the applicant declined to file a claim for pension
as part of his 1943 separation action.

7.  It appears that the applicant submitted an initial claim for disability
to the Department of Veterans Affairs in 2000.  Title 38, United States
Code provides for the effective dates of compensation awarded by the
Department of Veterans Affairs. The Army and this Board have no
jurisdiction over that agency in dictating when compensation should
commence.  The applicant’s argument regarding when he should have begun
receiving compensation is with the Department of Veterans Affairs, and not
the Army.  He is advised to contact that agency for appeal avenues.

8.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WP ___  ___RD__  ___JM  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _____ William Powers  _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010117                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050802                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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