RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070009316 


	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:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 the reason for his honorable discharge be changed to show that his hearing loss was aggravated by military service. 

2.  The applicant states that even though hearing loss was noted on induction into the Army of the United States, it was aggravated by weapons firing and being struck on the head by the drill sergeant. 

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), a letter from a veterans service officer, and seven letters of support from family members, each stating that the applicant did not suffer from a loss of hearing prior to entering the military. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board give careful and sympathetic consideration of all the evidence of record to render a fair and impartial decision.

2.  Counsel states that the applicant served on active duty from 7 October to 
10 December 1970, during which time he suffered increased hearing loss due to gun fire and being hit in the head by a drill sergeant.

3.  Counsel provides no additional documentation.


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.  The applicant's Record of Induction (DD Form 47) shows that on 16 April 1970, he was found not qualified for induction due to hearing loss.  On 13 May 1970, a medical examination determined his medical profile to be 1.1.1.2.2.1 and placed in physical category B.  

3.  On 7 October 1970, the applicant was inducted into the Army of the United States for 2 years.  

4.   On 20 November 1970, the applicant requested to be discharged under the provisions of Army Regulation 635-200, paragraph 5-9, due to not being medically qualified under procurement medical fitness standards when accepted for induction on 7 October 1970. 

5.  On 23 November 1970, the applicant underwent a medical examination and was found qualified for separation.  

6.  On 2 December 1970, the applicant appeared before a medical board.  He did not present any views on his own behalf.  The board found the applicant to be medically unfit due to a bilateral high frequency hearing loss; that was not in the line of duty; and that existed prior to military service; and was not aggravated by military service.  The board recommended that the applicant be separated from military service.  The narrative summary stated that the applicant had a history of hearing loss since about the age of 10 years when he could not make out words. This hearing loss precluded any further training.   

7.  On 10 December 1970, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 5, due to physical disability that existed prior to service.  His characterization was honorable.  He had completed 2 months and 
4 days of creditable active service.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel from active duty.  Paragraph 5-11 provides for the early separation (within the first six months) of those individuals who were not qualified under procurement medical standards, who manifested symptoms of medical problems that would have made them not qualified under procurement medical standards or who became not qualified prior to entry.  Although a Soldier in such circumstance has a right to request retention, an individual has no right to be retained.  The retention or separation decision is within the cognizance of the appropriate discharge authority.  Except in certain extraordinary cases, uncharacterized entry level separation is mandatory for all individuals who are in an entry level status (within the first 180 days of active duty) at the time separation processing is commenced.
9.  Army Regulation 635-40, chapter 5, provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when Soldier requests waiver of PEB evaluation.  This chapter is applicable to enlisted soldiers on active duty for more than 30 days.  If the time period exceeds 6 months or if the condition is disqualifying under AR 40-501, chapter 3, a Soldier is entitled to evaluation by a PEB or may waive evaluation under this chapter.  The regulation requires that the Soldier is eligible for referral into the disability system; the Soldier does not meet medical retention standards as determined by the medical board; the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty; the Soldier is mentally competent; knowledge of information about his/her medical condition would not be harmful to the Soldier’s well being; further hospitalization or institutional care is not required; after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits, but waiver of the PEB will not prevent applying for VA benefits.  If the Soldier is in entry level status at the time of processing, the service may be described as uncharacterized.

10.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant requested to be discharged due to his hearing loss that existed prior to his entry in the military.  Furthermore, the medical board determined that his military service had not caused any aggravation to his condition.  

2.  There is no available evidence showing that the applicant was struck on the head by a drill sergeant, or that the applicant’s loss of hearing was aggravated by weapons firing.   

3.  There is no available evidence showing that the applicant had any medical condition, incurred while entitled to receive basic pay, which was so severe as to render him medically unfit for retention on active duty.   Accordingly, the applicant was separated from active duty for reasons other than physical disability.  


4.  In light of his own assertions that his hearing loss was only aggravated by the period of service, the letters stating that he had no hearing loss prior to service are not convincing.

5.  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.

6.  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

__RTD __  __JLP ___  __JRM _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




 

___   Richard T. Dunbar____
          CHAIRPERSON




INDEX

CASE ID
AR20070009316
SUFFIX

RECON
 
DATE BOARDED
20071220
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
 19701210
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
145
2.

3.

4.

5.

6.