IN THE CASE OF:	

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020599 


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 correction of his records to show he was medically discharged.

2.  The applicant states that his medical records show he experienced a great deal of hearing loss between the time he entered military service and when he was discharged.

	a.  He states the percentage of decline in his hearing was greater than 50% at all levels.

	b.  He states the Department of Veterans Affairs (VA) granted him service-connection for his hearing loss in 2003 and began paying him compensation.

	c.  He adds he should be entitled to compensation from the U.S. Army from the date of his discharge in 1973 until the VA granted him compensation in 2003.

3.  The applicant provides a copy of his discharge document and page 2 of both his enlistment and separation physical examinations.

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 enlisted in the Regular Army (RA) for a period of 3 years on
26 October 1966.  Upon completion of training he was awarded military occupational specialty 36K (Field Wireman).

3.  The applicant reenlisted in the RA for a period of 4 years on 22 November 1968 and again for 4 more years on 8 November 1969.

4.  A DA Form 20 (Enlisted Qualification Record) shows in item 17 (Physical Status) the applicant's PULHES [Physical, Upper, Lower, Hearing, Eyes, Psychiatric] code with the numeral "2" under the letter "H."  Item 48 (Date of Audit) shows the applicant reviewed his DA Form 20 on 20 May 1971.

5.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty this period on 8 November 1969 and he was discharged on 15 August 1973 for the good of the service in lieu of trial by court-martial.  His service was characterized as under honorable conditions.  At the time he had completed 2 years, 8 months, and 25 days of net service this period; 3 years and 12 days of other service; and 5 years, 9 months, and 7 days of total service.

6.  The applicant's military service records do not contain a copy of his military medical records.

7.  A letter from the Director, National Personnel Records Center (NPRC),
St. Louis, MO, dated 26 April 1983, to United States Senator John C. Stennis, shows that the applicant's military record contained only personnel-type documents and entrance and physical examinations when it was retired to the NPRC.  On 10 November 1981, the NPRC forwarded the physical examinations to the VA Regional Office in Jackson, MS, at the request of that office.


8.  In support of his application, the applicant provides the following documents:

	a.  Page 2 of a Standard Form (SF) 88 (Report of Medical Examination) that appears to be part of the applicant's enlistment physical.  It shows in:

	    (1)  item 71 (Audiometer):


250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4086
6000
6144
8000
8192
Right

-5
-5
0

15


Left

-5
-5
35

40


	    (2)  item 73 (Notes and Significant or Interval History) the stamped entry "26 Oct 1966 - No Additional Defects Discovered - Fit For Military Service" and the medical official's initials;

	    (3)  item 74 (Summary of Defects and Diagnoses) the handwritten entry "[Item] 59 Defective vision";

	    (4)  item 76A (Physical Profile) the applicant's PULHES code with the numeral "2" under the letter "H" and "E";

	    (5)  item 77 (Examinee) the physician placed an "x" in the box indicating the applicant "is qualified for [enlistment]."

	b.  Page 2 of an SF 88 that appears to be part of the applicant's separation physical.  It shows in:

	    (1)  item 71 (Audiometer):


250
256
500
512
1000
1024
2000
2048
3000
2896
4000
4086
6000
6144
8000
8192
Right

25
10
40
45
35
35

Left

20
25
25
20
35
35

	    (2)  items 73 and 74 are blank;

	    (3)  item 76A the applicant's PULHES code with the numeral "2" under the letter "H;" and

	    (4)  item 77 the physician placed an "x" in the box indicating the applicant "is qualified for separation."

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), provides that the mere presence of 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

10.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice in the Army's determination.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different determinations based on the same impairment.  Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically discharged with compensation because he experienced a great deal of hearing loss between the time he entered military service and when he was discharged, and the VA has granted him service-connection for his hearing loss.

2.  An SF 88 provided by the applicant the examining physician found him qualified for separation.  Thus, the evidence the applicant provides does not support his contention that he had a physically unfitting condition at the time of his discharge.  Therefore, the applicant is not entitled to a medical discharge.


3.  The statutory and regulatory guidance provides that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated 
during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a disability rating for a condition that was determined to meet Army retention standards, is a prerogative exercised within the policies of that agency.

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 this requirement.  Therefore, in view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ____X___  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.



      ____________X____________
               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)                                         AR20090020599



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ABCMR Record of Proceedings (cont)                                         AR20090020599



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