IN THE CASE OF: 

		BOARD DATE: 20 December 2023

		DOCKET NUMBER: AR20230005147


APPLICANT REQUESTS: in effect a physical disability discharge in lieu of his 
honorable discharge for expiration of term of service.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	NGB Form 22 (National Guard Bureau Report of Separation and Record of 
Service)
*	DA Form 1270 (Transfer or Release to Reserve Component of the Army)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)
*	NGB Form 55a (Honorable Discharge Certificate)
*	Army Review Board Agency (ARBA) letter, dated 29 December 2022

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states he thought the Department of Veterans Affairs turned down his 
appeal for tinnitus because of the Army losing his records. He has tinnitus that may be 
partly caused because of his time in the artillery. He has difficulty hearing anything 
when there is a great amount of background noise. He is not disabled. He feels that he 
is in very good health except for tinnitus. He believes he would have better hearing now 
if he had been firing a smaller cannon and had proper protective equipment for his ears. 
No protection was provided. It has taken this amount of time for tinnitus to be a problem.

3.  The applicant enlisted in the California Army National Guard (CAARNG) on 31 May 
1957. He entered active duty on 29 September 1957 for 6-month active duty for training. 

4.  A DA Form 1270 shows a request to return the applicant to his National Guard unit. 
On 24 March 1958, he was honorably released from active duty and transferred to his 
National Guard unit. His DD Form 214 shows he was credited 5 months and 26 days 
net service this period and 3 months and 28 days of other [inactive] service for a total of 
9 months and 24 days total service.

5.  The applicant’s NGB Form 22 shows he was honorable discharged from the 
CAARNG on 1 August 1959. he was credited 2 years and 2 months of total service. 

6.  The applicant provided a copy of the ARBA letter dated 29 December 2022 
concerning his prior application which was closed without action because his official 
military personnel file (OMPF) could not be obtained.

7.  The applicant has not provided a copy of a DA Form 3349 (Physical Profile) and his 
available service records do not contain one for the Board’s review.

8.  Based on the applicant's contention the Army Review Boards Agency medical staff 
provided a medical review for the Board members. See "MEDICAL REVIEW" section.

9.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

10.  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. However, 
an award of a VA rating does not establish an error or injustice on the part of the Army. 

11.  Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards 
disability ratings to veterans for service-connected conditions, including those conditions 
detected after discharge. As a result, the VA, operating under different policies, may 
award a disability rating where the Army did not find the member to be unfit to perform 
his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her 
lifetime, adjusting the percentage of disability based upon that agency's examinations 
and findings.

12.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (EMR) (AHLTA 
and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical 
Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness 
Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records 
Management System (iPERMS).  The ARBA Medical Advisor made the following 
findings and recommendations:  
    b.  The applicant is applying to the ABCMR in essence requesting evidence his 
tinnitus was due to his military service so that he may obtain health care for this issue 
from the Department of Veterans Affairs.  He states in part:
“I thought the VA turned down my appeal for tinnitus because of your loss of 
records.  I have tinnitus that may be partly caused because of my time in the 
artillery.”
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 shows he entered the Regular Army on 29 
September 1957 and was honorably discharged on 24 March 1958 under the provisions 
provided in chapter AR 635-200, Personnel Separations – General Provisions for 
Discharge and Release (14 January 1958).  The separation program number of 201 
denotes expiration of term of service.   His Report of Separation and Record of Service 
shows he entered the Army National Guard on 31 May 1957 and was honorably 
discharged on 1 August 1959.
    d.  No medical documentation was submitted with the application or in the supporting 
documentation.  His period of Service predates the EMR.
    e.  There are no encounters or medical diagnoses in JLV.
    f.  Based on the information currently available, it is the opinion of the ARBA medical 
advisor that the ABCMR is unable to make the requested change in the applicant’s 
service record.  As the Veterans Benefits Administration operates under authority 
granted by Congress to the Department of Veterans Affairs (Title 38), its activities are 
executed under a different set of laws than those of the Department of Defense and the 
Military Services (Title 10).  The, the ABCMR under 10 USC § 1552, has no authority 
over or the ability to direct actions of the Department of Veterans Affairs.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The Board carefully 
considered the applicant's record of service, documents submitted in support of the 
petition and executed a comprehensive and standard review based on law, policy and 
regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service. Upon review of 
the applicant’s petition, available military records and the medical review the Board 
concurred with the advising official finding that the ABCMR is unable to make the 
requested change in the applicant’s service record. The Board noted, the Veterans 
Administration operates under a different set of laws than that of DoD and military 
service. In addition, the applicant’s contentions do not fall under the preview of ABCMR, 
based on this, the Board denied relief. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


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.


	 
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.


REFERENCES:

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 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.

2.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with 
authority to retire or discharge a member if they find the member unfit to perform military 
duties because of physical disability. The U.S. Army Physical Disability Agency is 
responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).

	a. Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b. The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition. Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service. Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c. The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating. 
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

3.  Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting 
from personal injury suffered or disease contracted in line of duty, or for aggravation of 
a preexisting injury suffered or disease contracted in line of duty, in the active military, 
naval, or air service, during a period of war, the United States will pay to any veteran 
thus disabled and who was discharged or released under conditions other than 
dishonorable from the period of service in which said injury or disease was incurred, or 
preexisting injury or disease was aggravated, compensation as provided in this 
subchapter, but no compensation shall be paid if the disability is a result of the veteran's 
own willful misconduct or abuse of alcohol or drugs.
4.  Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) 
states for disability resulting from personal injury suffered or disease contracted in line 
of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service, during other than a period of war, the 
United States will pay to any veteran thus disabled and who was discharged or released 
under conditions other than dishonorable from the period of service in which said injury 
or disease was incurred, or preexisting injury or disease was aggravated, compensation 
as provided in this subchapter, but no compensation shall be paid if the disability is a 
result of the veteran's own willful misconduct or abuse of alcohol or drugs.

5.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 
establishes the Army Disability Evaluation System and sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his office, grade, rank, 
or rating. Only the unfitting conditions or defects and those which contribute to unfitness 
will be considered in arriving at the rated degree of incapacity warranting retirement or 
separation for disability. Once a determination of physical unfitness is made, all 
disabilities are rated using the Department of Veterans Affairs Schedule for Rating 
Disabilities (VASRD).

	a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of 
a physical disability incurred or aggravated in military service.

	b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1) The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2) The disability must not have resulted from the Soldier's intentional misconduct 
or willful neglect and must not have been incurred during a period of unauthorized 
absence.

6.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for 
enlistment, induction, appointment (including officer procurement programs), retention, 
and separation (including retirement). The Department of Veterans Affairs Schedule for 
Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the 
process of adjudicating disability claims. It is a guide for evaluating the severity of 
disabilities resulting from all types of diseases and injuries encountered as a result of or 
incident to military service. This degree of severity is expressed as a percentage rating 
which determines the amount of monthly compensation.

7.  Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an 
applicant seeking corrective action by the Army Review Boards Agency (ARBA) be 
provided with a copy of any correspondence and communications (including summaries 
of verbal communications) to or from the Agency with anyone outside the Agency that 
directly pertains to or has material effect on the applicant's case, except as authorized 
by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian 
and military medical and behavioral health professionals and are therefore internal 
agency work product. Accordingly, ARBA does not routinely provide copies of ARBA 
Medical Office recommendations, opinions (including advisory opinions), and reviews to 
Army Board for Correction of Military Records applicants (and/or their counsel) prior to 
adjudication.

8.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations. Clemency generally refers to relief specifically granted from a criminal 
sentence. BCM/NRs may grant clemency regardless of the court-martial forum. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to any other corrections, including changes in a discharge, which 
may be warranted on equity or relief from injustice grounds. This guidance does not 
mandate relief, but rather provides standards and principles to guide BCM/NRs in 
application of their equitable relief authority. In determining whether to grant relief on the 
basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect 
for rehabilitation, external evidence, sworn testimony, policy changes, relative severity 
of misconduct, mental and behavioral health conditions, official governmental 
acknowledgement that a relevant error or injustice was committed, and uniformity of 
punishment.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230005147


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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