IN THE CASE OF:	  

		BOARD DATE:	        05 AUGUST 2008

		DOCKET NUMBER:  AR20080007870 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be retired by reason of physical disability.  

2.  The applicant states that he was unaware that he could have been retired for disability until recently.  He goes on to state that he damaged his hearing twice while on active duty and has since been approved for a 40% disability compensation from the Department of Veterans Affairs (VA).  He continues by stating that in 1988 he had completed 17 years of service and was not able to finish 20 years because he could not pass the medical exam.

3.  The applicant provides copies of his Army physicals dated in 1988 and 1996, a copy of a hearing tests conducted by a civilian facility, a copy of his Honorable Discharge Certificate dated 5 October 1988, and a copy of his VA Rating Decision.  

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 records, though somewhat incomplete, show that he was born on 29 January 1944 and enlisted in the North Carolina Army National Guard (NCARNG) on 1 August 1966. 

3.  On 24 October 1969, he was commissioned as an infantry second lieutenant in the NCARNG and continued to serve until he was honorably discharged from the NCARNG on 1 April 1974, due to his unqualified resignation.  He was transferred to the United States Army Reserve (USAR) Control Group (Standby). He was honorably discharged from the USAR on 5 October 1988.  

4.  On 28 August 1997, the applicant enlisted (with a waiver of medical disqualification) in the NCARNG in the pay grade of E-4, for a period of 3 years and training as a fabric repair specialist.

5.  On 16 October 1998, the applicant’s commander submitted a request to discharge the applicant from the NCARNG.  He cited as the basis for his recommendation, the applicant’s unsatisfactory participation.  He also stated that the applicant has enlisted in the NCARNG with the intent of enrolling in the warrant officer program; however, he was not accepted into that program because of his age and thereafter expressed no interest in attending drills or being a member of the NCARNG.  He went on to state that he advised the applicant that he should remain in the NCARNG until he was eligible to retire and the applicant stated that he would not stay in the NCARNG as a specialist.   

6.  On 31 December 1998, the applicant was discharged from the NCARNG under honorable conditions and was transferred to the USAR Control Group (Reinforcement), where he remained until he was honorably discharged from the USAR on 29 August 2000, due to the expiration of his term of service.  

7.  A review of the applicant’s chronological statement of retirement points indicates that the applicant has completed 12 qualifying years of service for retirement.  His last qualifying year of service ended on Retirement Year Ending (RYE) 4 December 1984.  He has not been issued a 20-year letter.

8.  The applicant’s medical records are not present in the available records.  However, the two physical examinations provided by the applicant show that in January 1988, the applicant underwent a physical examination in Jacksonville, North Carolina (presumably the Naval Hospital Camp Lejeune) and the examining physician deemed the applicant temporarily not physically qualified (TNPQ) to perform all duties of his rate at sea and on foreign shore due to his hearing loss.  The physician recommended that a manual audiogram be performed and that the applicant be referred to an audiologist and that the exam be referred to an Army Review Facility.  There is no evidence in the available records to show what follow-up action was taken at the time.

9.  The physical examination dated 30 May 1996 was conducted in conjunction with the applicant’s enlistment in the NCARNG.  The examining physician deemed him unqualified for enlistment due to hearing loss.  However, the physician recommended that he be granted a waiver. 

10.  On 10 March 2008, the VA granted the applicant a 40% disability compensation rating to the applicant for hearing loss (30%) and tinnitus (10%).

11.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

12.  Army Regulation 635-40, chapter 3, provides, in pertinent part, that when a Soldier is being processed for separation or retirement other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.   

13.  Title 38, United States 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.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

14.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.      

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was unable to complete 20 years of service due to his hearing disability has been noted and found to lack merit.  The first time the applicant’s hearing was diagnosed as a disqualifying defect, the applicant was serving as a commissioned officer and he subsequently submitted his unqualified resignation from the NCARNG and was subsequently discharged from the USAR in 1988 after having served 2 consecutive years without attaining a creditable year for retirement (50 or more points). 

2.  The applicant again enlisted in the NCARNG with a medical waiver for his hearing on 28 August 1997; however, he was discharged from the NCARNG on 31 December 1998 due to unsatisfactory participation and was transferred to the USAR until the expiration of his term of service, when he was again discharged from the USAR. 

3.  Inasmuch as the available records show insufficient evidence to establish that the applicant was deemed to be unfit to perform the duties of his office, grade, rank or rating because of his disability, the applicant is presumed to have been fit for duty at the time of his separation from the service.  This is supported by the fact that he continued to serve after each physical examination, which creates a presumption of fitness.  

4.  Additionally, there is no evidence to suggest that the applicant was denied reenlistment in order to attain retirement eligibility.  In fact, the applicant’s records clearly indicate that his commander attempted to convince him that he should remain in the NCARNG until he reached retirement eligibility and the applicant indicated that he would not remain in the NCARNG as a specialist.  Accordingly, his decision not to remain in the NCARNG was the result of his actions and not an action on the part of the Department to deny him an opportunity to reach retirement eligibility or as a result of his disability.

5.  The fact that the VA assigned him a disability rating does not constitute error or injustice on the part of the Department because they are two separate systems that have two different parameters for determining disability. 

6.  In the absence of evidence to show that he was not fit for retention and/or separation, it must be presumed that he was deemed fit for separation at the time he was honorably discharged.

7.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007870



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ABCMR Record of Proceedings (cont)                                         AR20080007870



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