IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100013960 


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, in effect, correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to state he was discharged for a disability incurred during his military service. 

2.  The applicant states, in effect, he was not provided hearing protection and as a result his ears were damaged on the firing range.  He further states after numerous examinations by civilian and Department of Veterans Affairs (VA) doctors, the VA has determined he is 60 percent disabled due to service-connected ear injuries. 

3.  The applicant provides documents through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's military discharge documents be changed.

2.  Counsel makes no statement. 

3.  Counsel provides documents identified in a list submitted with his application.





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 military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  This case is being considered using a DD Form 214 in his reconstructed NPRC file.

3.  The applicant enlisted in the Regular Army on 17 November 1950.  He was honorably discharged on 12 January 1951 after completing 1 month and 26 days of active military service.

4.  His DD Form 214 shows in item 8 (Reason and Authority for Separation) he was discharged under the provision of Army Regulation 615-360-40.  Item 38 (Remarks) contains the statement "For the convenience of the Government-Disability existing prior to entry on active service and not aggravated by Military Service."

5.  In a statement to the VA, dated 23 December 2006, the applicant stated his ears were injured on a shooting range during boot camp by rifle fire from two other recruits whose rifles were positioned 12 inches on either side of his head.  While shooting, he heard a pop in his head and later found out both of his eardrums had ruptured.  He went to sick call 2 or 3 days later and after two or three visits to the doctor he was told he was going to be sent home with an honorable discharge.  He further states when he signed his DD Form 214 he was not aware it stated his injury was not caused while serving in the Army.  

6.  The documents that the applicant provided to the VA included five statements, dated 11 December 2006, from individuals who knew him prior to his Army service.  Each statement indicates, in effect, the applicant did not have medical issues with his ears prior to serving in the Army.
7.  Counsel provides a VA rating decision, dated 5 February 2010, showing the applicant was granted service connection for bilateral hearing loss and bilateral tinnitus with a combined rating for compensation of 60 percent.  The VA documents explaining the rating decision show the applicant's service treatment records were not available for review and that service connection was granted based on reasonable doubt.

8.  Special Regulations 615-360-40 (Disposition of Individuals with Physical or Mental Disability which Existed Prior to Entry on Active Service), in effect at the time, provided that individuals who were unfit for military service because of a physical or mental disability such that they would not meet the physical or mental requirements for enlistment or induction into the services were candidates for separation or retirement:

	a.  Individuals whose physical or mental disability was clearly established by proper medical authority to have existed prior to entry on active service could elect to submit an application for immediate discharge for the convenience of the Government, provided that 1) they had no prior service in any of the Armed Forces; 2) they had less than 6 months' service in their initial enlistment at the time the physical disability was discovered; and 3) the physical disability was not aggravated by military service. 

	b.  Upon receipt of the application by the individual's commanding officer, action was to be initiated to bring the individual before a medical board for consideration of the appropriate disposition.  If the medical board found the disability existed prior to entry on active duty and was not aggravated by military service and recommended discharge of the individual for the convenience of the Government, the findings and recommendations, together with the individual's application, were to be referred to the commander exercising discharge authority.

	c.  All discharge certificates executed under the provisions of these regulations were to show the specific cause for discharge as "For the convenience of the government--Disability existing prior to entry on active service and not aggravated by military service."

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for correction of his DD Form 214 to show he was discharged for a disability incurred during his military service.

2.  The evidence of record does not show, nor has the applicant provided evidence showing, the reason and authority for his discharge are incorrect.  A 2010 VA rating decision based on reasonable doubt and statements made in 2006 by individuals claiming to have known the applicant prior to his military service are insufficient for changing an Army record created more than 50 years ago.  In the absence of documentation showing errors in the process leading to the applicant's discharge, administrative regularity must be presumed.  

3.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100013960



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013960



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1