MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             3 July 2003                  
	DOCKET NUMBER:    AR2003085248

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor 		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Patrick H. McGann		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:  In effect, that his military records be corrected to show that he was medically retired. 

APPLICANT STATES:  In effect, that he should have been medically retired for a hearing loss he suffered while serving in the Army.  In support of his application he submits a copy of the letter dated 22 June 1993, authored by the Department of Veterans Affairs (VA) Regional Office, Nashville, Tennessee.

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

The applicant continuously served on active duty for a total of 8 years and 
1 month, from 22 April 1965 to 21 May 1973.  At that time, he was honorably released from active duty (REFRAD) in order to join a unit of the United States Army Reserve (USAR).  While on active duty, he was trained and served in military occupational specialty (MOS) 76Y (Supply Specialist), and during his tenure on active duty he earned the Good Conduct Medal (2nd Award) and National Defense Service Medal.  The record also shows that the highest rank he held while on active duty was specialist five/E-5 (SP5/E-5).  

The applicant’s Military Personnel Records Jacket (MPRJ) contains no medical records.  Further, there are no documents on file in his MPRJ that indicate that he suffered from a hearing loss that prevented his continued performance of his military duties while on active duty and/or that would have warranted his being processed for separation through medical disability channels.  

The 22 June 1993 VA letter, from the Nashville Regional Office, advised the applicant that his VA disability rating of 10 March 1988, which granted him service connection for bilateral hearing loss was a clear and unmistakable error. This letter also informed the applicant that unless evidence was provided that showed why it should not take place, his service connection for bilateral hearing loss rating would be terminated on 1 September 1993.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, or rating and the conditions must have been incurred while entitled to base pay.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

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.  The applicant’s medical records were not available for review by the Board and the independent evidence provided by the applicant is not sufficient to support his contention that he should have received a medical discharge due to his hearing loss.  

2.  The evidence of record confirms that the applicant did not suffer from a medically disqualifying condition that would have warranted his separation processing through medical channels at the time he was REFRAD.  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met, and the rights of the applicant were fully protected during his separation processing. 

3.  The 1993 action taken by the VA in regard to the applicant’s status is not relevant to his separation processing from the Army in 1973.  The VA, operating under its on policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not necessarily constitute an error or injustice on the part of the Army.

4.  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.

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

__KN___  __RO__  __PM       __  DENY APPLICATION

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

INDEX

CASE ID	AR2003085248	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1. 177	 108.0000	
2.		
3.		
4.		
5.		
6.