RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002397


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane Armstrong               |     |Member               |
|     |Ms. Delia Trimble                 |     |Member               |

      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 effect, an increase in his Army disability
rating.

2.  The applicant states, in effect, that his hearing loss was not added to
the
30 percent disability rating that he received.  He notes his hearing loss
was identified during his 1973 and 1975 disability boards.

3.  The applicant provides copies of the pages from his 1973 and 1975
physical evaluations conducted as part of his disability processing.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 May 1975.  The application submitted in this case is
dated
25 January 2005.

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 limitations 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.  Records available to the Board indicate the applicant entered active
duty in 1965.  In August 1973 he was discharged from active duty and his
name placed on the Temporary Disability Retired List (TDRL) the following
day.

4.  Documents associated with his 1973 Medical and Physical Evaluation
Boards (MEB and PEB) were not in records available to the Board.  However,
the 1973 medical summary document provided by the applicant noted he
sustained a laceration to his right arm while in Germany in 1971 which
resulted in his evacuation through an Army medical facility in Nuremberg,
Germany to Kimbrough Army Hospital at Fort Meade, Maryland.  The medical
evaluator noted the applicant's hearing loss as part of his "past history &
review of systems."  There was however, no comment on the applicant's
hearing loss included in the physical examination summary on the document.
The physical examination dealt exclusively with the condition of the
applicant's right hand and arm.

5.  In 1975 the applicant underwent another physical evaluation as part of
the TDRL evaluation process.  The MEB and PEB associated with his 1975 TDRL
evaluation were also not in records available to the Board.  The partial
copy of the 1975 physical evaluation, provided by the applicant indicates
the evaluating physician for that examination noted, like the 1973
evaluator, that the applicant had a hearing loss under the past history and
review of systems.  Again, however, the applicant's hearing loss was not
included or commented on as part of the physical evaluation.  The 1975
examination was limited to the applicant’s right arm and hand.

6.  On 18 March 1975 the applicant concurred with the findings and
recommendations of the MEB and indicated he did not desire to appeal.

7.  On 16 May 1975 orders were issued removing the applicant's name from
the TDRL and permanently retiring him effective 31 May 1975 with a
disability rating of 30 percent.

8.  Army Regulation 635-40 states that the mere presence of an impairment
does not, in itself, justify a finding of unfitness because of physical
disability.  In each case, it is necessary to compare the nature and degree
of physical disability present with the requirements of the duties the
Soldier reasonably may be expected to perform.  To ensure all Soldiers are
physically qualified to perform their duties in a reasonable manner,
medical retention qualification standards have been established in Army
Regulation 40-501.  These retention standards and guidelines should not be
interpreted to mean that possessing one or more of the listed conditions or
physical defects signifies automatic disability retirement or separation
from the Army.

9.  Army Regulation 40-501, in effect at the time, indicated that trained
and experienced personnel will not be categorically disqualified if they
are capable of effective performance of duty with a hearing aid.  It stated
that most Soldiers having a hearing defect can be returned to duty with
appropriate assignment limitation and that only Soldiers incapable of
performing duty with a hearing aid will be referred for disability
processing based on the hearing impairment.

10.  Army Regulation 635-40 further states that the combined percentage
rating approved at the time the Soldier was placed on the TDRL cannot be
changed by the PEB throughout the period the Soldier is on the TDRL.
Adjustment will be made at the time of removal from the TDRL to reflect the
degree of severity of those conditions rated at the time of placement on
the TDRL and any ratable conditions identified since placement on the TDRL.

11.  Additionally, Department of Defense Instruction Number 1332.38, which
implements policy, assigns responsibilities, and prescribes procedures for
the separation or retirement for physical disability notes that in addition
to the above the TDRL periodic examinations should also address the
etiology of all medical impairments diagnosed since the member was placed
on the TDRL, to include:

      a.  where the new diagnosis was caused either by the condition for
which the member was placed on the TDRL or the treatment received for such
a condition.

      b.  if not caused by the condition for which the member was placed on
the TDRL, whether the member’s medical records document incurrence or
aggravation of the condition while the member was in a military duty
status; and if so, whether the condition was cause for referral into the
Disability Evaluation System at the time the member was placed on the TDRL.

12.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  The VA,
which has neither the authority, nor the responsibility for determining
physical fitness for military service, awards disability ratings to
veterans for conditions that it determines were incurred during military
service and subsequently affect the individual’s civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant’s history of hearing loss was acknowledged
as part of the initial disability processing, did not mean that the hearing
loss rendered him unfit.  The fact that the physical evaluation portion of
the 1973 and 1975 evaluation made no mention of the applicant's hearing
loss further supports a conclusion that the condition did not render him
unfit and as such, it was not rated.  The applicant concurred with that
determination as part of his 1975 evaluation process.

2.  The fact that a medical condition might now exist or deteriorated,
which was originally not considered to contribute to the applicant’s
inability to perform his duties, is not evidence of any error or injustice
in the original findings of the PEB. The condition was documented and its
progression, as it may impact the applicant’s future employability, is more
appropriately addressed through the Department of Veterans Affairs rating
system.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 May 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 May 1978.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SK ___  __DA ___  __DT  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____ Stanley Kelley_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002397                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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