MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           31 August 2000                  
	DOCKET NUMBER:   AR2000040624

	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.  Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his earlier appeal to correct his records by changing his other than honorable discharge under Army Regulation 635-200, chapter 10 to physical disability separation. 

APPLICANT STATES:  In effect, that he was disqualified for enlistment due to a hearing problem and was absent without leave (AWOL) because he could not hear well enough to perform his duty.  He submits the report of his enlistment  audiogram and a 7 March 2000 hearing test to substantiate his case.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case on 
20 May 1999 (COPY ATTACHED).

The denial of the applicant’s previous request was based upon his failure to timely file.  His claim that his AWOL had a medical basis was not specifically addressed in the discussion portion of the MOC.  His current submission requires Board consideration.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMCA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at an entire file.  The Board considers the statute of limitations only after all other aspects have been considered and it has been concluded that there is basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the MOC does not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record, the circumstances of the discharge and the governing regulations tends to show that it did so.  The Board does not deny applications simply because they were not submitted within 3 years. 

2.  The report of the applicant’s 20 May 1980 enlistment physical examination clearly shows that “Hearing Defect” was crossed out and initialed.  Subsequently, on 11 June 1980, a stamped endorsement indicated that there were no disqualifying defects.   

3.  Furthermore, the applicant was being processed for separation that could have resulted in discharge under other than honorable conditions.  Absent a specific finding by the GCMCA, he could not have been processed for disability separation.    

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__SAC__  ___BJE_   __JRS ___  DENY APPLICATION

        Carl W. S. Chun
      Director, Army Board for Correction 
      of Military Records

INDEX

CASE ID	AR2000040624	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.