MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            18 February 1999  
	DOCKET NUMBER:   AR1998012530

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. John P. Infante		Member	
	Mr. James P. Steuve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, disability retirement vice retirement for length of service.  He states, in effect, that he was “offered” a 30 percent “military disability” for his hearing loss at the time of retirement but declined because “with a family of 4 [he] was afraid with a disability [he] would not be able to get employment.”  He notes the VA has only rated him at 10 percent for “tinitus” and although the VA has granted him service connection for his hearing loss they have rated as non-compensable (0 percent) “partly because “he” did not accept the 30% military disability at the time of retirement.”  He states that his family is now grown and he is unable to secure employment and requests “in fairness” that the Board correct his record to reflect disability retirement.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant initially entered active duty as an enlisted soldier in June 1955.  He was commissioned as a field artillery officer and entered active duty in that status on 14 June 1966.  On 28 May 1976 he applied for voluntary retirement and underwent a separation physical examination on 9 August 1976.  His separation physical examination notes the applicant had moderate to severe high frequency hearing loss but found him medically qualified for retirement.  There is no indication he was referred for disability retirement.

On 31 August 1976 the applicant was released from active duty and his name placed on the retired rolls the following day.  At the time of his retirement he had 20 years, 1 months, and 1 day of active Federal service.

The applicant’s performance evaluation reports showed continued improvement in his performance level.  In June 1973 his performance was rated at 118 out of a possible 200, in June 1974 he received a rating of 178, in June 1975 a rating of 195 and in his final evaluation report, completed in June 1976, he received a score of 198.  None of the reports mentioned that the applicant’s hearing loss affected his ability to perform his military duties and his rater indicated in his final report that the applicant should be “recommended for immediate promotion and should be retained on active duty beyond 20 years.”

Army Regulation 635-40 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirement of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  It also notes that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury, rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 31 August 1976, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 31 August 1979.

The application is dated 26 September 1997 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___tnk__  __jpi___  __jps______  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998012530	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990218	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.142.00		
3.		
4.		
5.		
6.