IN THE CASE OF:
BOARD DATE: 2 June 2011
DOCKET NUMBER: AR20100020749
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 reconsideration of his previous request that his general discharge under the Expeditious Discharge Program (EDP) be changed to show he was separated due to a physical disability.
2. The applicant states the audiogram "dated July 2007" is actually a military audiogram taken on 15 July 1977 as part of his entrance into the U.S. Army. He argues that the addendum from the West Haven, CT, Department of Veterans Affairs (VA), dated 25 June 2007, clearly states in the "Past Medical History" section "hearing loss since age 3 with bilateral hearing aids." He contends that because the VA determined he has a service-connected disability due to PTSD and mental impairments, his discharge should show he had a claim for mental and/or physical disabilities at that time. In his argument, the applicant continues to address his hearing impairment and describes the complications associated with that particular impairment.
3. The applicant provides an audiogram, dated 15 July 1977, Standard Forms 600 (Chronological Record of Medical Care) covering the period 28 March-9 December 1978, two public school documents, and documents that show he acquired a hearing aid.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000060 on 20 July 2010.
2. In the original ABCMR Record of Proceedings, the Board determined the available evidence did not support his contention that he was incapable of performing his duties due to a physical disability.
3. He provides public school records as new evidence and argues the actual date of the audiogram. These issues were not previously considered by the Board.
4. The public school records he provides indicate he has suffered a hearing impairment since an early age. It is also noted that the audiogram he refers to appears to be dated 15 July 1977 and not 15 July 2007 as stated in the original Record of Proceedings.
5. The applicant was discharged under the provisions of Army Regulation
635-200 (Personnel Separations), chapter 5, under the Expeditious Discharge Program after several instances of misconduct and because of his inability to adjust to Army life and unwillingness to cooperate with peers and superiors. There is no evidence he was referred to a medical evaluation board or a physical evaluation board for consideration of any unfitting medical condition.
6. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness.
7. Title 38, U.S. Code, sections 1110 and 1131, 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 fitness 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DD Form 214 should be corrected to show his separation was based on a physical disability has been carefully considered.
2. The additional evidence shows he has suffered from a hearing impairment since an early age. It also confirms that his impairment existed before his entry on active duty.
3. The evidence of record confirms his discharge was based on his repeated acts of misconduct. The evidence also confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He failed to show through the new evidence provided that he was suffering from any medically unfitting condition, either a hearing problem or PTSD or any other mental condition, that would have required him to be processed for discharge through medical channels.
4. The fact that the VA, in its discretion, awarded him a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.
5. The available evidence and the applicant's argument are insufficient to overturn the original Board decision.
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 the overall merits of this case are
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100000060, dated 20 July 2010.
____________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) AR20100020749
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ABCMR Record of Proceedings (cont) AR20100020749
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