RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 MARCH 2006
      DOCKET NUMBER:   AR20050007659


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Larry Olson                   |     |Member               |
|     |Mr. Ronald Gant                   |     |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, that his hearing loss be declared as
an injury that resulted from an instrument of war.

2.  The applicant states, in effect, that he injured his hearing by
participating in live fire on the rifle range when qualifying with the M16
rifle, prior to going to Vietnam and he desires to have this injury
classified as resulting from an instrument of war.

3.  The applicant provides a copy of his weapons qualification orders and
his annual physical examination.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 October 1975.  The application submitted in this case was
received on 8 May 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.  He enlisted in Memphis, Tennessee on 25 March 1955, for a period of 3
years and training as a military policeman.  He successfully completed his
training and remained on active duty through a series of continuous
reenlistments.

4.  In August 1959 he changed his military occupational specialty (MOS) to
that of an admin noncommissioned officer (NCO) and in February 1966 he
attended Recruiter and Career Counselor training at Fort Benjamin Harrison,
Indiana.  He was promoted to the pay grade of E-7 on 30 June 1966.

5.  On 8 April 1967, the applicant qualified “Expert” with the M16E1 Rifle
and on 10 April 1967, he underwent an Annual physical/Medical examination
and was diagnosed with a hearing loss to the right ear – H2.  He was deemed
fit for retention.

6.  He was transferred to Vietnam on 14 June 1967 for duty as a personnel
sergeant in an Adjutant General personnel division.  He departed Vietnam
2 months later on 24 August 1967 and was transferred to Cape Girardeau,
Missouri, for duty as a career counselor.  He remained there until he was
transferred to Mayfield, Kentucky on 25 June 1971, for duty as a field
recruiter.

7.  On 31 October 1975, he was honorably released from active duty and was
transferred to the Retired List effective 1 November 1975, due to length of
service.  He had served 20 years, 7 months and 6 days of total active
service.

8.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement,
or Separation, paragraph 3-2b, provides 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.

9.  Army Regulation 635-40 also provides that when a member is being
separated by reason other than physical disability, his or her continued
performance of assigned duty commensurate with his or her rank or grade,
until he or she is scheduled for separation or retirement, creates a
presumption that he or she is fit.  This presumption can be overcome only
by clear and convincing evidence that he or she was unable to perform his
or her duties for a period of time 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.

10.  Title 38, United States Code, sections 310 and 331, permits the VA to
award compensation for a medical condition which was incurred in or
aggravated by active military service.  An award of a VA rating does not
establish error or injustice in the Army rating.  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
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 affects the individual's employability.

11.  Title 10, United States Code, section 1413a, Combat-Related Special
Compensation (CRSC) provides, in pertinent part,  that eligible members are
those retirees who have 20 years of service for retired pay computation and
who have disabilities that are the direct result of armed conflict,
specially hazardous military duty, training exercises that simulate war, or
cause by an instrumentality of war.  Such disabilities must be compensated
by the Department of Veterans Affairs and rated at least 10% disabling.
For periods before 1 January 2004, members had to have disabilities for
which they were awarded the Purple Heart and are rated at least 10%
disabled or who are rated at least 60% disabled as a direct result of armed
conflict, specially hazardous duty, training exercises that simulate war,
or cause by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant’s contention that his hearing loss was caused by his
weapons qualification and that it was the result of an instrument of war
has been noted and found to be without merit.

3.  The applicant has failed to show through evidence submitted with his
application or the evidence of record that he sustained a disability that
required him to be processed for medical disability or that the hearing
loss that was noted on his physical examination was the result of his
weapons qualification in 1967.

4.  Additionally, he has not provided sufficient evidence to establish that
his hearing loss was the result of an instrument of war.  The applicant
served only 2 months in Vietnam and that assignment was to a personnel
unit, where the likelihood of being injured by an instrumentality of war
was greatly reduced.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 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

___BE___  ___LO __  ____RG_  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.




                                  ______Barbara Ellis________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007659                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060328                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19751031                                |
|DISCHARGE AUTHORITY     |AR 635-200 & 601-280                    |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |179/DISABILITY %                        |
|1.108.0200              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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