IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150007406 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150007406 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. Enclosure 1 IN THE CASE OF: BOARD DATE: 8 March 2016 DOCKET NUMBER: AR20150007406 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, military disability retirement based on hearing loss. 2. The applicant states, in effect, he is not sure whether he is authorized retired pay based on his hearing loss in certain frequency ranges due to military service. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) * Standard Form 89 (Report of Medical History), undated * self-authored request for a hardship discharge, dated 21 September 1964 CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 16 November 1953. 3. On 5 January 1955, he underwent a physical examination. His Standard Form 89 shows in: * item 17 (Statement of Examinee's Present Health in Own Words) – "TO THE BEST OF MY KNOWLEDGE I AM IN PERFECT HEALTH" * item 20 (Have You Ever Had or Have You Now – Ear, Nose, or Throat Trouble) – "No" * item 40 (Physician's Summary and Elaboration of All Pertinent Data) – "Acoustic trauma, [auditory] defect mild" 3. On 21 September 1964, he requested discharge due to hardship reasons. 4. On 22 September 1964, he underwent a separation physical examination. His Standard Form 88 (Report of Medical Examination) shows in: a.  item 22 (Clinical Evaluation Ears – General (Internal and External Canals) (Auditory Acuity Under Items 70 and 71)): "Normal"; b.  item 70 (Hearing): no entries; c.  item 71 (Audiometer): * Right:  500 – S, 1000 – S, 2000 – S, 4000 – 35, 8000 – 25 * Left:  500 – S, 1000 – 0, 2000 – S, 4000 – 30, 8000 – 40 d.  item 76 (Physical Profile) – he had no physical limitations and listed the following levels of functional capacity in the six factors (PULHES) as: * P – physical capacity or stamina – 1 * U – upper extremities – 1 * L – lower extremities – 1 * H – hearing and ears – 1 * E – eyes – 1 * S – psychiatric – 1 e.  item 77 (Examinee): he was qualified for separation. 5. On 24 September 1964, the separation authority approved his request for discharge. 6. On 1 October 1964, he was honorably discharged due to hardship. Item 11c (Reason and Authority) of his DD Form 214 for this period shows the authority as Army Regulation 635-207 (Personnel Separations – Discharge or Release – Minority and Dependency of Hardship), separation program number (SPN) 227, and the reason as hardship. 7. He provided copies of his DD Forms 214, DD Form 215, request for hardship discharge, and a Standard Form 89, undated and unsigned by a physician. The Standard Form 89 shows in: a.  item 17 – "I am of good health except for the following: As of 21 June 1963 Profile 2 in hearing" followed by his initials; and b.  item 39 (Have you ever received, is there pending, have you applied for, or do you intend to apply for pension or compensation for existing disability?) – he checked "yes" followed by the comment "Loss of hearing in certain frequencies ranges due to military service. Nothing pending now reference to pension, question possibility." 8. His available medical records are void of and he failed to provide evidence of: * a physical profile for hearing loss * referral to a medical evaluation board or physical evaluation board * a determination of unfitness or disability rating REFERENCES: 1. Army Regulation 635-207, in effect at the time, pertained to the separation of enlisted personnel because of genuine dependency or hardship. This provision of the regulation stated an application for such separation would be approved when a service member could substantiate that his situation or immediate family's situation had been aggravated to an excessive degree since enlistment, that the condition was not temporary, and that discharge would improve the situation. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing DD Form 214. The instructions stated the regulatory authority and reason for the separation would be entered in item 11c of the DD Form 214. The narrative reason for separation was based on the governing Army regulation and the SPN as shown in appendix I. SPN 227 specified the narrative reason for discharge was "hardship" and the authority for discharge was Army Regulation 635-207, chapter 6. 3. Army Regulation 40-501 (Standards of Medical Fitness), then in effect, provided guidance for medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a.  Chapter 3 (Medical Fitness Standards for Retention, Promotion, and Separation, Including Retirement) provided standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter were referred for disability processing. b.  When a member was being processed for separation for reasons other than physical disability, his or her continued performance of duty until he or she was scheduled for separation for other purposes created a presumption that the member was fit for duty. c.  The presumption that an increase in severity of such an impairment was the result of service must have been overcome by conclusive evidence. Statements of accepted medical principles used to overcome these presumptions had to clearly state why the impairment could not reasonably have had its inception while the member was entitled to receive basic pay or that an increase in severity represented normal progression. d.  Chapter 9 (Physical Profiling) provided a system for classifying individuals according to functional abilities and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing and if reclassification action was warranted. (1)  Four numerical designations (1-4) were used to reflect different levels of functional capacity in the six PULHES factors. (2) Numerical designators 2 and 3 indicated an individual had a medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty. The individual received assignments commensurate with his or her functional capacity. 4. Army Regulation 635-40C (Personnel Separations – Physical Evaluation Boards), in effect at the time, set forth policies for the application of laws governing disability benefits to members who were found physically unfit and required ratings under the standard schedule of rating disabilities in use by the Veterans Administration (VA) at the time of the determination. Paragraph 3f stated when a member was determined to be unfit and the impairment was not sufficient to satisfy the criteria for the lowest rating under the diagnosis in the VA Schedule, a rating of zero percent would be assigned. 5. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 7. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant's request for military disability retirement was carefully considered. 2. His Standard Form 89, dated 5 January 1955, shows the entry "acoustic trauma, [auditory] defect mild." This form does not show he was issued a physical profile or referred to a medical evaluation board or physical evaluation board for this condition. 3. Although he provided a Standard Form 89, undated and unsigned by a physician, which shows the entry "As of 21 June 1963 Profile 2 in hearing," his records are void of and he failed to provide evidence of a physical profile. 4. His Standard Form 88, dated 22 September 1964, shows he had no physical limitations and he was qualified for separation. 5. His available records are void of and he failed to provide any evidence showing he had a medical condition warranting processing through the Disability Evaluation System or that he received a disability rating of 30 percent or more for an unfitting condition. 6. The evidence shows he was properly discharged on 1 October 1964 under the provisions of Army Regulation 635-207 for hardship and not due to any unfitting conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings @#!CASENUMBER ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150007406 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2