RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            13 JANUARY 2004                  
	DOCKET NUMBER:   AR2003090505

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

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests in his April 2003 application to this Board that his discharge under other than honorable conditions be upgraded to honorable.  In a May 2003 request he requests that his discharge be upgraded to honorable or under honorable conditions; and also requests, in effect, physical disability retirement or separation. 

2.  The applicant states that he was informed that his discharge would be upgraded to honorable one year after his discharge.  He was arrested for driving a stolen car.  He did not know that it was stolen.  The charges were dropped.  He was confined because of AWOL (absent without leave).  In his May 2003 request he states that during the last 10 years he has had no trouble with the law.  He states that he enlisted in 1961, hoping to make the Army a career.  According to his enlistment physical he was in great physical condition.  In June 1961, while going through a confidence course, a grenade exploded close to his head.  Since then he experienced ringing, cricket noises, chirping, and high-pitched sounds in his ears and has had trouble understanding conversations.  He has consulted numerous hearing specialists and has had hearing aids, which have not helped.  He has missed out on many things, to include opportunities for advancements at work, because of his severe hearing disability.  He hopes to receive compensation or perhaps surgery for his injuries.   

3.  The applicant, in his initial request to the Board, states that he provides certain documents; however, none of these are included with his application.  In his May 2003 request he provides letters of support from two individuals and from his brother, who attest to his hearing problems subsequent to his discharge from the Army.  He provides a copy of his 16 March 1962 DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on        16 March 1962.  The applications submitted in this case are dated in April and May 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for three years on 20 February 1961.  His report of medical examination, dated 15 February 1961, shows a physical profile serial of 1 1 1 1 1 1 and that he was qualified for enlistment.  In the report of medical history that he furnished for the examination, the applicant indicated that he had or had had ear, nose, or throat trouble.   

4.  On 6 March 1961 the applicant was assigned to Fort Hood, Texas for basic combat training.  A 24 April 1961 medical record indicates that the applicant sustained an acoustical trauma from firing a rifle grenade.  He completed basic combat training and remained at Fort Hood for advanced infantry training.  Medical records in May and June 1961 show that he continued to be seen for problems with his ears.   

5.  An 8 June 1961 medical record indicates that the applicant stated that he had always had some hearing loss since childhood.  That record indicates that the applicant stated that his hearing became bad following a grenade explosion of a dummy grenade about six weeks ago, that his ear hurt after that until he went to a private physician while on leave, who told him that he had an ear infection of both ears and a throat infection.  He was treated with pills and the hurt went away except for a small area on the right mastoid tip which continued to be sore. He continued to fire on that range.  He stated that he felt that he could not hear well.  That record indicates that the applicant underwent hearing examinations and tests.  The impression given was that he might have some genuine hearing loss in both ears, but that he was not giving a true test on his audiogram.  The examining physician recommended that he be retested in a week.  

6.  On 3 July 1961 the applicant underwent testing by an audiologist, who stated that the test results were, in general, inconsistent.  He stated that there was evidence of at least some degree of functional overlay, but although true organic hearing levels were not determined, it was felt that the applicant had practically normal hearing, at least in the left ear with the possibility of some degree of hearing loss in the right ear.

7.  The applicant was tested again on 3 July 1961.  Those tests also revealed inconsistencies in the applicant's responses.  

8.  On 10 July 1961 the applicant underwent an evaluation by a psychiatrist.  The 18 July 1961 report of that evaluation indicates that the applicant was at that time in the stockade for impersonating an officer, resisting arrest, speeding, and driving without lights.  The psychiatrist diagnosed the applicant's condition as passive-aggressive, chronic, severe, manifested by resisting arrest, negative attitude toward authority, and impulsive and poor social judgment.  His condition existed prior to service (EPTS).  The applicant was determined to be mentally responsible, able to distinguish right from wrong and adhere to the right, and able to cooperate in his own defense.  The applicant was psychiatrically clear for any administrative action deemed necessary.  The psychiatrist recommended that no further attempt at rehabilitation of the applicant be made.  He recommended that the applicant be separated under the provisions of Army Regulation 635-208. 

9.  On 21 July 1961 the applicant was arraigned and tried by a special court-martial which convened at Fort Hood, Texas.  He was found guilty of absenting himself without authority on 9 July 1961, of resisting arrest, and having been arrested, breaking his arrest, of operating a vehicle in a reckless manner by speeding and driving without lights, and by failing to obey lawful orders.  He was sentenced to be confined at hard labor for six months.  The convening authority approved the sentence and ordered that it be duly executed.  On 31 August 1961 the unexecuted portion of the applicant's sentence was suspended until             20 January 1962.  On 10 November 1961 the suspension of his sentence was vacated.        

10.  On 3 February 1962 the applicant was arraigned, tried, and found guilty of stealing an automobile by a special court-marital which convened at Fort Hood on 3 February 1962.  He was sentenced to be confined at hard labor for six months.  

11.  A 12 February 1962 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of    1 1 1 3 1 1.  That report indicates that he had a loss of hearing in both ears.

12.  On 13 February 1962 the applicant's commanding officer recommended to the separation authority that the applicant be eliminated from the Army under the provisions of Army Regulation 635-208 with an Undesirable Discharge Certificate.  Included with his recommendation were statements from three officers and three noncommissioned officers who attested to the applicant's undesirable conduct and substandard performance of duty.  Also included was a 22 January 1962 report of a psychiatric evaluation.  That report replicated the   18 July 1961 psychiatric report.     

13.  On 15 February 1962, in a sworn statement, the applicant stated that he wanted to stay in the Army and be discharged with an honorable discharge.  He stated that he realized he made a big mistake, and wanted to prove that he could be a good Soldier.  

14.  In a 2 March 1962 statement, the applicant stated that he had been advised that he was being recommended for elimination from the service for unfitness, and that he had been counseled and advised as to the reason for the action and that he could receive an undesirable discharge.  He stated, in effect, that he understood the nature and consequences of the undesirable discharge that he might receive.  He stated that he had been advised that he could be represented by counsel.  He stated that he did not desire counsel.  He stated that he had also been advised that he could waive his right to appear before a board of officers to determine if he should be eliminated.  He stated that he did not desire to appear before a board of officers and that he did not desire to submit a statement in his own behalf.

15.  On 10 March 1962 the separation authority approved the recommendation that the applicant be discharged from the service without appearance before a board of officers, and directed that the applicant be issued an Undesirable Discharge Certificate.

16.  The applicant was discharged on 16 March 1962.  He had 6 months and     29 days of service and 179 days of lost time.

17.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate.  Unfitness included frequent incidents of a discreditable nature with military or civil authorities and an established pattern of shirking.  An undesirable discharge was normally considered appropriate. 

18.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

19.  Army Regulation 635-40, then in effect, states in pertinent part 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.  

20.  That regulation also states 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.

21.  Army Regulation 635-40 provides that a member will not be referred for physical disability processing when action has been or will be taken to separate him for unfitness.  
DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant declined counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of an undesirable discharge.  The character of the discharge is commensurate with the applicant's overall record of military service. In view of the applicant's numerous acts of indiscipline, it does not appear that his undesirable discharge was too severe.   
 
2.  The applicant's medical records indicate that he did have a hearing problem at the time of his discharge; however, his condition was not so severe as to render him medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  Nonetheless, because of the nature of his separation, he could not have been referred for physical disability processing despite his hearing problem. 

3.  Notwithstanding the applicant's contentions, and the statements of support he submits with his request, medical records show that the applicant himself stated that he had a hearing loss prior to his enlistment in the Army.  Nevertheless, the medical evidence of record indicates that he was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request to either upgrade his discharge or to grant him physical disability retirement or separation.   
  
5.  Records show the applicant should have discovered the error or injustice now under consideration on 16 March 1962; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 March 1965.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LEM __  __RWA__  __PHM  _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		____Lana E. McGlynn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090505	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040113	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.