IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150016214 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: 23 March 2017 DOCKET NUMBER: AR20150016214 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. IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150016214 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, correction of his DD 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his discharge was "military related" and not based upon his failure to meet medical fitness standards at the time of his enlistment. 2. The applicant states his DD Form 214 is contradictory and not factual. The discharge document should show his discharge was military related, versus not meeting medical fitness standards at the time of enlistment. 3. The applicant provides: * DD Form 214, for the period ending 1 August 1969 * Department of Veterans Affairs (VA) Rating Decision, dated 8 May 2015 * VA Form 21-4138 (Statement in Support of Claim), dated 4 September 2015 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 28 April 1969 at 24 years of age. He entered active duty in Los Angeles, CA, for the purpose of completing initial entry training (IET). His record indicates he did not finish his IET. 3. A DA Form 3349 (Medical Condition – Physical Profile Record), dated 8 July 1969, shows: a. The applicant was found to have a medically recorded deficiency concerning his hearing and ears. He was given a PULHES [the acronym used to address factors comprising the Military Physical Profile Serial System] rating of "1-1-1-1-2-1," which was later downgraded to a "1-1-1-1-3-1" because of bilateral adhesive otitis media (collapsed ear drums). It appears the profiling officer incorrectly assigned the "2" and "3" ratings to the "eyes" factor (E) instead of the "hearing and ears" factor (H). b. The PULHES condition was deemed permanent and he received the following limitations: no assignment involving habitual or frequent exposure to loud noises or firing of weapons; no assignment to the Republic of Vietnam; and no assignment to hazardous noise duty. 4. A DA Form 2496 (Disposition Form), dated 14 July 1969, shows the applicant requested separation. He acknowledged with his signature: a. He was notified by competent medical authorities that, based upon preliminary findings, he was erroneously enlisted or inducted because he did not meet the procurement medical fitness standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), for enlistment or induction. b. It was fully explained to him that, provided that the approved findings of a Medical Board corroborate the preliminary findings concerning his unfitness, he may be discharged from the military service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), because he did not meet the medical fitness standards upon enlistment or induction even though he meet the physical standards for retention. He understood that such separation will be without disability retirement or disability severance pay; however, it would not preclude him applying for benefits administered by the Veterans' Administration (VA). c. In consideration of the information above, the applicant requested separation, noting that he did not desire to complete the term of service for which he enlisted or was inducted. d. His commander recommended approval of the separation action. 5. The applicant's Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 15 July 1969, shows: a. Chief Complaint: Hearing loss both ears. b. Present Illness: Patient is a 25 year old male who has been aware of a hearing loss in both ears for quite some time. He had been followed by numerous civilian physicians for the hearing loss. He has had frequent ear infections as a child. The remaining past history and system review is essentially noncontributory. c. Physical Examination: Limited to the ear, nose, and throat (ENT) examination. The examination of the ears shows bilaterally markedly retracted tympanic membrane. The left tympanic membrane shows an attic retraction pocket. The right shows a markedly retracted membrane with no middle ear space. Examination of the remaining portion of the ENT is within normal limits. The nasopharynx was difficult to visualize. Audiometric evaluation showed an average of 40 decibels in the speech frequency and 25 decibels at 4,000 cycle per sec for air conduction and bone conduction showed an average of 15-20 decibels in the speech frequency and 25 at 4,000. d. Present Condition: He is showing evidence of primary Eustachian tube malfunction. He has bilateral adhesive otitis media with a total deafness in the left ear and conductive deafness in the right ear. It is the undersigned's opinion that this man is unfit in accordance with Army Regulation 40-501, chapters 2-5 & 2-6e(2). He does not meet the Army fitness standards for induction. e. Diagnosis: Bilateral adhesive otitis media (collapsed ear drums), secondary to Eustachian tube mal function. Total deafness of the left ear and mixed deafness in the right ear. f. Recommendation: That the patient be presented to a medical board for consideration of separation from service. 6. A Standard Form 88 (Report of Medical Examination), dated 17 July 1969, shows the applicant was diagnosed with collapsed ear drums. The physician annotated the applicant was qualified for retention; however, he also annotated he was not qualified for procurement. The physician gave him a PULHES rating of "1-1-1-3-1-1" to show he had a permanent medical deficiency concerning his hearing and ears. 7. A DA Form 8-118 (Medical Board Proceedings), dated 17 July 1969, shows the applicant was present during the proceedings and did not present any views in his own behalf. a. He was found medically fit for further military service in accordance with medical fitness standards at that time. * Line of duty – No * Approximate date of origin – prior to active duty * Cause incident to service – No * Existed prior to entry on active duty – Yes * Aggravated by active duty – No * Optimum hospital improvement for disposition purposes – Yes * Maximum hospital benefit received - Yes b. The board recommended he be relieved from all training duties. The Medical Board findings approval authority approved the findings on 24 July 1969. The applicant was informed of the board findings and recommendations on 25 July 1969. He did not desire to appeal the Board's action. 8. The applicant was honorably discharged on 1 August 1969, while a trainee at Fort Leonard Wood, MO. The DD Form 214 he was issued shows he completed 3 months and 4 days of total active service. His DD Form 214 further shows in: a. Block 11c (Reason and Authority), he was discharged for not meeting medical fitness standards at time of enlistment. b. Block 32 (Signature of Person Being Transferred or Discharged), he authenticated the document with his signature. 9. The applicant provides: a. A VA Rating Decision that shows: * he received an evaluation of 60 percent for bilateral hearing loss, and an evaluation of 10 percent for tinnitus * he was diagnosed with sensorineural hearing loss in-service * medical board proceedings stated his hearing loss was prior to service * there is no evidence of pre-existing hearing loss prior to his entrance into the military * he has an entrance exam, dated 25 March 1969 (not provided as evidence and not located within his record), which showed normal hearing on the audiometer hearing exam, and a presumption of soundness is conceded * a subsequent examination for separation, dated 17 July 1969, showed a shift in audiometer findings with total deafness in his left ear and mixed deafness in his right ear b. A VA Form 21-4138, which constitutes his self-written statement to the VA. He states, in effect: * training involved the firing of the M14 and M16 * he had to crawl beneath live M60 bullets fired above his head * he was close to a grenade explosion * he joined the Army without this disability; he entered the Army after passing a physical exam REFERENCES: 1. Army Regulation 635-200, in effect at that time, sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-9 provides individuals who were not medically qualified under procurement medical fitness standards when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within four months of the member's initial entrance on active duty which would have permanently disqualified him/her for entry into the military service had it been detected at that time. 2. Title 38, United States Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. DISCUSSION: 1. The applicant requests correction of his DD Form 214 to show his discharge did not result from his failure to meet medical fitness standards at the time of his enlistment. He contends his discharge should reflect that his disqualifying injuries occurred after he enlisted in the Army. His service-connected disability determination by the VA is noted. 2. The applicant was discharged from the Regular Army after serving on active duty for 3 months and 4 days. It appears a medical condition was diagnosed within 4 months of his enlistment. Had this condition been discovered prior to his entry on active duty, he would not have been medically qualified under procurement medical fitness standards. 3. The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-9. Discharges under this regulatory provision are approved by an approval authority after medical board proceedings have been completed. The applicant was provided an opportunity to appeal the Medical Board's decision; however, he did not. Instead, he requested separation. 4. His VA Rating Decision references an entrance exam on 25 March 1969, which shows normal hearing on the audiometer. The entrance exam was not provided to the Board as evidence and is not contained in his military record. The VA Rating Decision also references his separation examination on 17 July 1969, which shows total deafness in his left ear and mixed deafness in his right ear. The separation examination referenced by the VA was not provided as evidence to the Board by the applicant. However, the 17 July 1969 examination is filed within his military record and shows a diagnosis of collapsed ear drums, with the audiometer examination results. There is no mention he suffered from military related explosions or loud noises. 5. The medical board narrative shows he shared information that he was aware of hearing loss in both ears for quite some time, he was seen by numerous civilian physicians, and he had frequent ear infections as a child. 6. The Disposition Form, dated 14 July 1969, shows the applicant requested separation after the military examiner determined he was fit for retention, but not fit for procurement. The applicant acknowledged he may be discharged from the military service under the provisions of Army Regulation 635-200, because he did not meet the medical fitness standards upon enlistment or induction, even though he met the physical standards for retention. He understood that such separation would be without disability retirement or disability severance pay; however, it would not preclude him applying for benefits administered by the VA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016214 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2