MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 December 2000                   
	DOCKET NUMBER:   AR2000047115

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Harry B. Oberg		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:  That his honorable discharge be changed to a medical discharge.

APPLICANT STATES:  That he was put out due to his service-connected disability so he should have received a medical discharge.  He provides his Honorable Discharge Certificate and a 12 September 1978 letter from the Board informing him that his line of duty determination had been changed to In Line of Duty.

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

He was inducted into the Army on 25 May 1965 and was awarded military occupational specialty (MOS) 02B (Trumpet Player).  He was released from active duty on 24 May 1967.  He was discharged from the U. S. Army Reserve (USAR) on 24 May 1971.  He enlisted in the USAR on 13 December 1975 in MOS 02B for 1 year.  

On 16 October 1976, the applicant’s unit, Headquarters, 313th Army Band, Birmingham, AL fired weapons at the rifle range.  The applicant reported ringing in his ears at the end of firing but his commander determined it was no more severe than normal for just finishing firing.  

The applicant did not report for drill in November 1976 (he was reported to be sick).  

The applicant reenlisted in the USAR on 12 December 1976 for 1 year, making his expiration term of service (ETS) 11 December 1977.  

The next scheduled drill was in January 1977.  At this time the applicant told his commander that he had an ear problem and his civilian doctor told him to stay away from loud noises.  His commander instructed him not to go to band rehearsal but to report to the supply room instead.  The applicant reported to supply but shortly thereafter disappeared.  The next day he reported for sign-in and roll call and then disappeared.  He was absent from the February 1977 drill.  He was present for the March 1977 drill and the 3 April 1977 drill but not the     24 April 1977 drill.  The commander considered a general discharge for failure to attend training assemblies at this point.  The applicant attended one drill period in May 1977 and then was excused as ill the rest of the drills.  He was absent for drills in June 1977. 

On 14 June 1977, the applicant was authorized to perform inactive duty training without pay for the purpose of completing a physical examination.  The Report of Medical Examination, SF Form 88, noted the applicant’s hearing loss (plus knee pain) but found he was qualified for retention with a physical profile of 212211.

The applicant reported for annual training in July 1977 and was informed he was being processed for a general discharge.  He was sent an unsatisfactory participation letter dated 14 July 1977.  He responded in writing by stating the reasons for his absences had already been submitted.

On 15 October 1977, a Statement of Medical Examination and Duty Status, DA Form 2173 was completed investigating the rifle range incident.  Item 31 noted that a formal line of duty investigation was required.  Item 32 noted that the injury was considered to have been incurred In Line of Duty.  However, when the DA Form 2173 reached Fort McClellan, AL for review, the line of duty determination was changed to Not in Line of Duty.

On 12 December 1977, the applicant extended his 1-year enlistment of 12 December 1976 to a period of 13 months, making his ETS 11 January 1978.

On 18 January 1978, the applicant was honorably discharged from the USAR upon completion of his ETS.

On 21 April 1978, the applicant applied to the Board to have his line of duty determination changed to In Line of Duty.  In the processing of the case, the Board forwarded his application to the Office of the Adjutant General (TAG).  TAG found that since only an informal investigation had been conducted, and since the final determination of an informal investigation could only result in a finding of In Line of Duty, the finding of Not in Line of Duty was invalid.  TAG changed the findings to In Line of Duty.

Army Regulation 40-501 governs medical fitness standards for enlistment and retention and separation.  In pertinent part, it states that trained and experienced personnel will not be categorically disqualified if they are capable of effective performance of duty with a hearing aid.  Most soldiers having a hearing defect can be returned to duty with appropriate assignment limitations.  Soldiers incapable of performing duty with a hearing aid will be referred for medical evaluation/physical evaluation board processing.

Army Regulation 611-201 provides the enlisted MOS classification structure for the U. S. Army.  In pertinent part, it states that a band member must possess a physical profile of at least 222222.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  In pertinent part, it states 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.  It also states that in order to be eligible to receive retirement and severance pay benefits, soldiers who sustain or aggravate physically unfitting disabilities must not have incurred the disability as a result of the soldier’s intentional misconduct or willful neglect. 

The doctrine of laches is defined by Black’s Law Dictionary, sixth edition as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  There is no evidence of record to show that the applicant was “put out” due to his service-connected disability.  The evidence of record shows that he was discharged when his term of service expired.  Since there is no record of evidence to show he was barred from reenlistment, the Board presumes that the applicant elected not to request reenlistment or further extension.

3.  The board notes the nature of the applicant’s injury and his MOS.  However, at his last physical examination he was given a physical profile of only 212211, within the regulatory limits of his MOS’s requirements.  The evidence shows that the applicant’s commander was willing to work with the applicant’s limitations       (i. e., by having him work in the supply room rather than attend band rehearsal). Presumably his commander would have worked with reclassifying the applicant into a more appropriate MOS had he indicated a desire to continue his military career.  However, the evidence shows that the applicant was not disposed to reciprocate that willingness and began to miss drills soon after his hearing injury.

4.  Twenty years have passed since the applicant’s discharge.  He was aware of the change in the line of duty determination in 1978.  It would not be possible at this point to determine whether or not the amount of his hearing loss in 1978 would have made him unfit for any military duties.  Due to the passage of time, favorable consideration of his request would be barred by laches if the statute of limitations were waived.  The Board concludes that it is not in the interest of justice to waive the statute.

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

__fne___  __lem___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047115	
SUFFIX		
RECON		
DATE BOARDED	20001212	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.