IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110016350 


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, that the reason and authority under which he was separated, and which appears on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), be corrected.

2.  The applicant states, in effect, his record indicates his hearing was not aggravated by military service.  He contends this is untrue.  His ears drums were damaged due to the loud noise the artillery guns made during training.

3.  The applicant provides his DD Form 214.  Although he indicated he provided his military medical records, none were enclosed 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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of a DD Form 214.

3.  The applicant was inducted into the Army of the United States for 3 years on 6 February 1959.  He served on active duty for 3 months and 9 days before being separated for a physical disability which existed prior to his entry on active duty.  

4.  The applicant’s medical records are not available for review nor did the applicant provide medical records or any other evidence to substantiate his claim.

5.  The applicant's DD Form 214 indicates that he was separated by reason of "Physical Disability EPTS" (existed prior to service).  The authority for separation was listed as Army Regulation 635-40A (Personnel Separations – Physical Evaluation for Retention, Separation or Retirement for Physical Disability).  Army Regulation 635-40A was one of three regulations dealing with physical disability, the others being Army Regulation 635-40B and Army Regulation 635-40C.  These regulations were replaced in May 1967 by Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

6.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.  Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.  

7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the reason and authority for his separation action as shown on his DD Form 214 is incorrect; however, there is insufficient evidence to support this claim.  

2.  Army Regulation 635-40 superseded Army Regulations 635-40A/635-40B/635-40C in May 1967.  The applicant was separated in May 1959.

3.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a properly-constituted
DD Form 214 which shows he was discharged on 14 May 1959 under the provisions of Army Regulation 635-40A, by reason of “Physical Disability EPTS" with service characterized as honorable.  

4.  In the absence of evidence, it appears the applicant was separated under the proper authority in effect at the time of his service; therefore, there appears to be  no error on his DD Form 214 relating to the reason and authority under which he was separated.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate.

6.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20110016350



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ABCMR Record of Proceedings (cont)                                         AR20110016350



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