IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140012677 


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 narrative reason for separation.

2.  The applicant states:

	a.  He wants his narrative reason for separation changed from "Physical Disability – Existed Prior to Service (EPTS) – Medical Board" to "Physical Disability – Retired."

	b.  He did not enter the military with any EPTS problems.  He passed all required physical examinations and had normal hearing in both ears.

	c.  He joined the Army in August 1980.  During his initial physical examination he was told he failed part of the hearing test and he needed to retake the test.  He took the test on another day and passed it.  At no point did anyone approach him with any concern regarding his hearing during basic training or advanced individual training (AIT).  On the first day he fired his weapon they were told that most of them would lose about 30 percent of their hearing, but they would regain it soon after.  He suffered some pain in his ears during firing of his weapon because the earplugs were too small.  He completed basic and AIT.

	d.  While stationed at Fort Bliss, TX, the situation worsened during weapon firing.  While firing a rocket, it exploded from the rear of his head and he dropped it.  He began to experience ringing noises in his ears.  Then fluid started to build up and drain from his ears.  This incident occurred in the summer of 1981.

	e.  In September 1981, he went to the doctor because his hearing was getting worse.  He was given a hearing test and he was told he had mild to severe bilateral hearing loss.  This test was sent to the medical evaluation board (MEB) for review.  He did request to change his military occupational specialty (MOS) because he did not want to end his military career.

	f.  His MEB proceedings show the board's decision to end his military career without him having anything to say.  He was never asked to be present during the MEB proceedings.  He was later given the order to prepare to exit the Army.  He left the Army in January 1982.

	g.  The MEB based their findings on his first hearing test that he failed.  They never reviewed the second hearing test that he passed. If he had a failing test then he would not have been able to enter the Army.

3.  The applicant provides:

* U.S. Army Recruiting Command Form 300 (Screening Physical Examination for Army Recruitment)
* Standard Form 88 (Report of Medical Examination)
* Standard Form 600 (Chronological Record of Medical Care)
* medical record, dated 24 September 1981
* DA Form 8-118 (Medical Board Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 provided a Standard Form 88, dated 28 December 1979, that shows he was medically qualified for enlistment with a physical profile of 111111.

3.  He enlisted in the Regular Army on 6 August 1980 for 3 years.  He completed his training and was awarded MOS 36K (tactical wire operator specialist).

4.  On 30 November 1981, an MEB diagnosed him with severe bilateral sensorineural hearing loss, EPTS.  He was found unfit for further military service and the board recommended his separation from active duty in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 5.  His DA Form 8-118 shows:

* he was not present during the proceedings
* he did not present any views in his own behalf
* he did not desire to continue on active duty

5.  The MEB findings and recommendations were approved on 8 December 1981.  He concurred with the board's findings and recommendations on 14 December 1981.

6.  The applicant's waiver of physical evaluation board (PEB) evaluation is not available.  However, on 11 January 1982, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-40, chapter 5, and directed the issuance of an Honorable Discharge Certificate.

7.  He was honorably discharged on 20 January 1982 under the provisions of Army Regulation 635-40, chapter 5, by reason of "Physical Disability – EPTS – Medical Board."  He completed 1 year, 5 months, and 15 days of creditable service.

8.  His DD Form 214 shows in:

* item 25 (Separation Authority) – Army Regulation 635-40, Chapter 5
* item 26 (Separation Code) – KFN
* item 28 – Physical Disability – EPTS – Medical Board

9.  Army Regulation 635-40, which governs the separation of Soldiers who are physically unfit, states chapter 5 provides for separation of an enlisted Soldier for non-service aggravated EPTS conditions when the Soldier requests a waiver of PEB evaluation.  This chapter is applicable to enlisted Soldiers on active duty for more than 30 days.  Separation under the authority of this chapter is not to be confused with separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5.  The latter provides for involuntary separation within the first 6 months of entry onto active duty for failure to meet procurement fitness standards.  Paragraph 5-2 states that in order to separate a Soldier under this chapter, the case must meet the following conditions:

	a.  the Soldier is eligible for referral into the disability system;

	b.  the Soldier does not meet medical retention standards as determined by the MEB;

	c.  the disqualifying defect or condition existed prior to entry on current period of duty and has not been aggravated by such duty;

	d.  the Soldier is mentally competent;

	e.  knowledge of information about his or her medical condition would not be harmful to the Soldier’s well being;

	f.  further hospitalization or institutional care is not required;

	g.  after being advised of the right to a full and fair hearing, the Soldier still desires to waive PEB action; and

	h.  the Soldier has been advised that a PEB evaluation is required for receipt of Army disability benefits but waiver of the PEB will not prevent applying for Department of Veterans Affairs benefits.

10.  Unless otherwise indicated, the Soldier would be issued an honorable or general discharge commensurate with his service.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated that SPD code KFN was the appropriate code to assign to Soldiers being separated under the provisions of Army Regulation 635-40, chapter 5, by reason of Physical Disability – EPTS – Medical Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is no evidence of record which shows he was medically retired.

2.  The evidence shows he was found unfit for military service by an MEB with severe bilateral sensorineural hearing loss, EPTS.  The MEB recommended his separation under the provisions of Army Regulation 635-40, chapter 5, for Physical Disability - EPTS – Medical Board.  He elected not to remain on active duty and he concurred with the MEB findings and recommendation on 14 December 1981.  He was discharged accordingly.

3.  There is no evidence to show that his narrative reason for separation was not administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, 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 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)                                         AR20140012677



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ABCMR Record of Proceedings (cont)                                         AR20140012677



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