IN THE CASE OF:	  

		BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100024020 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was partially disabled at the time of his release from active duty.  [Interpreted to mean to show he was physically unfit.]

2.  The applicant states he was a radio operator with duty that included listening to Morse code transmissions for 12-hour days.  Consequently, he suffered a hearing loss due to this constant noise in his ears.  He complained at the Army hospital in Heidelberg, Germany, but it was not noted on his DD Form 214.

3.  The applicant provides no additional evidence.

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.  On 19 October 1960, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 055.10 (Communications Monitor).

3.  On 2 July 1961, the applicant departed Fort Devens, MA, for duty in Europe.  He was subsequently assigned to the 102nd Army Security Agency Detachment in MOS 055.10.

4.  A Standard Form 88 (Report of Medical Examination), dated 27 June 1963, shows he underwent a physical examination for the purpose of separation from active duty.  The physician noted the applicant had a slight hearing loss, discovered in January 1963 when an audiogram revealed a deafness perception in 4000 and 8000 audio ranges.  The applicant claimed he was going to study speech and that this loss would hinder his success in this vocation.  A medical consultation showed no disease or pathology which the applicant claimed he was previously told existed.  The examining physician found the applicant to be fit for release from active duty.

5.  On 28 August 1963, the applicant was honorably released early from active duty as an overseas returnee.  He attained the rank of specialist five/pay grade E-5 and had completed 2 years, 10 months, and 10 days of creditable active duty service.  He was assigned a reentry code of 1, indicating he was fully qualified for reenlistment.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that when a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the Soldier is scheduled for separation creates a presumption that the Soldier is fit.

7.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

8.  Title 10, U.S. 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 in section 1201 for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

9.  Title 38, U.S. Code, sections 310 and 331, permits the Department of Veterans Affairs (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 physically unfit 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, in effect, contends his military records should be corrected to show his narrative reason for separation is medical disability.  He also requests that he be retired due to a physical disability.  All of the applicant's evidence has been carefully considered.

2.  There is medical evidence showing the applicant had a slight loss of hearing while on active duty.  However, there is no documentary evidence showing the applicant requested a medical evaluation board or that he was unjustly denied such evaluation.  The applicant's physical examination for separation indicates he was fully qualified for separation.  His DD Form 214 indicates he was fully eligible for reenlistment without a waiver.

3.  Furthermore, there are no provisions for indicating on the DD Form 214 that the applicant was "partially disabled" at the time of his  release from active duty.

4.  There is no evidence of error or injustice in the applicant's case.

5.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20100024020



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ABCMR Record of Proceedings (cont)                                         AR20100024020



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