RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070007849 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 granted a waiver of his hearing loss so that he may reenlist in the United States Army Reserve (USAR).

2.  The applicant states, in effect, that he has served for 14 years and needs another 6 years of service to qualify for retirement.  He has received medical clearance from a civilian doctor to enlist, but the Army denied him a waiver. 

3.  The applicant provides copies of his discharge order, two Certificates of Release or Discharge from Active Duty (DD Forms 214) with correction (DD Form 215), Request for Medical Examination, Physical Review Board evaluation, Physical Profile, Report of Medical Examination, Mercy Medical Group new patient evaluation, and two electronic-mail communications. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 17 February 1981, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 76C2O (Equipment Records and Parts Specialist).  He continued to serve on active duty through a series of reenlistments. 

3.  On 4 August 1989, the applicant, after receiving counseling from the reenlistment noncommissioned officer, signed a Declination of Continued Service Statement (DA Form 4991) in lieu of accepting another assignment.

4.  On 18 October 1990, the applicant was honorably discharged.  He had attained the rank of sergeant (pay grade E-5) and had completed 9 years, 
7 months, and 29 days of creditable active service.
5.  On 19 October 1990, the applicant enlisted in the United States Army Reserve for a period of 1 year, beginning in the rank of sergeant, pay grade E-5. He served on active duty as a Reserve Soldier from 22 January to 18 March 1991, in support of Operation Desert Shield/Desert Storm. 

6.  On 23 May 1991, the applicant was promoted to staff sergeant, pay grade 
E-6.

7.  On 18 June 1991, the applicant reenlisted in the United States Army Reserve for a period of 6 years.  

8.  The applicant was notified by the Commander, 402nd Training Support Battalion, Lawton, Oklahoma, of his unexcused absences from unit training on 
10 January 1993. 

9.  The applicant was notified by the Commander, 402nd Training Support Battalion, Lawton, Oklahoma, of his unexcused absences from unit training on 
8 August 1993 and on 6 and 7 November 1993. 

10.  On 30 September 1994, the applicant requested involuntary transfer to the Individual Ready Reserve (IRR) due to the inactivation or reorganization of his unit and another assignment not being available.  On 13 January 1995, he was transferred to the IRR.

11.  Orders D-06-746615, United States Army Reserve Personnel Center, dated 17 June 1997, honorably discharged the applicant from the United States Army Reserve due to the expiration of his term of service (ETS).

12.  On 27 March 2006, the applicant underwent a medical examination at the St. John's Mercy Health Care Center.  The audiological report stated that he was having difficulty hearing and recommended that he be fitted with hearing aids bilaterally.   The examining physician also stated that the applicant had a history of one pulmonary embolism 13 years ago but had been well since.  He had no problems with chest pain or shortness of breath and is otherwise healthy.  He advised the applicant not to go on motor vehicle trips longer than 3 hours without stopping to get out and walk around.  Aside from that, he had no limitations that would prevent him from entering the Reserve. 

13.  On 30 March 2006, the Command Surgeon, Physical Review Board, Human Resources Command, St. Louis, Missouri, identified that the applicant suffered from a bilateral hearing loss but found him to be qualified for retention with a profile of 111321.  [However, the applicant had no military status at the time.]
14.  On 21 April 2006, the applicant received an electronic communication advising him that his request for a waiver of his hearing loss for the purpose of enlistment into the United States Army Reserve was denied because his "hearing loss in the speech recognition is too severe to waive."

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), provides, in pertinent part, that applicants must meet procurement physical fitness standards of Army Regulation 40-501, chapter 2, and meet the added requirements of specific options for which enlisting.  Waivers may be requested for medical defects, provided applicant is not under the care of a physician or taking medication for the defect.  Current members of the United States Army Reserve and Army National Guard (except IRR) having a physical that is within 5 years of application for enlistment onto active duty may be processed and projected as "No Medical Required."  Current active service members of other Services enlisting onto active duty with a physical that is within 5 years of application for enlistment onto active duty may be processed and projected as "No Medical Required."  All other applicants must meet the procurement standards of AR 40-501, chapter 2.

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant reenlisted in the USAR on 
18 June 1991 for 6 years and was honorably discharged 6 years later on his ETS date of 17 June 1997.  

2.  Regulatory guidance requires that all applicants who are not currently members of the Regular Army or the USAR, must meet the procurement medical standards, or be granted a waiver, prior to enlistment.

3.  In 2006 he underwent a medical examination for the purpose of enlisting in the USAR.  However, he did not qualify for enlistment due to bilateral hearing loss that was diagnosed as too severe for a waiver. 

4.  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 the aforementioned requirement.

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



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ LDS__  ___RSV _  _SWF ___  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.




__    Linda D. Simmons __
          CHAIRPERSON




INDEX

CASE ID
AR20070007849
SUFFIX

RECON
 
DATE BOARDED
20071025 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
112.1000
2.

3.

4.

5.

6.