IN THE CASE OF:	  

		BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110010261 


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 a line of duty (LOD) determination for damage to a ruptured ear drum while he was on active duty conducting diving operations.

2.  The applicant states he was unable to provide Department of Veterans Affairs (VA) information as to the circumstances surrounding his injury.

3.  The applicant provides

* Self-authored letter to the Army Human Resources Command (AHRC)
* Email from an Army officer responding to his request for an LOD determination
* Standard Form (SF) 513 (Clinical Record Consultation Sheet), dated 19 February 1971

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.  On 8 September 1958, the applicant accepted an appointment as a second lieutenant (2LT)/O-1 in the U.S. Army Reserve.  He was awarded an Army Intelligence Officer area of concentration (AOC).  He was ordered to active duty effective 28 December 1958.  His request for retention on active duty was approved for an indefinite period, effective 28 December 1960.

3.  The applicant's medical records are not on file.  His Military Personnel Records Jacket (MPRJ) does contain an SF 93 (Report of Medical History) that was completed on 13 September 1978 for the purpose of retirement.  Item 11 (Have You Ever Had or Have You Now) "Hearing Loss," the applicant checked the "Yes" box.  In item 25 (Physician's summary and elaboration of all pertinent data), the physician noted that the applicant stated he had a hearing deficit for about 10 years, left greater than right.

4.  The applicant retired on 31 December 1978 by reason of sufficient service for retirement.

5.  He submits an undated letter to AHRC stating:

	a.  he had damage to his left ear drum while engaged in a military-directed diving operation in the fall of 1969;

	b.  he was refused a VA claim for disability for his injury;

	c.  in order for him to obtain disability status for his injury, he needs a specific LOD statement covering his hearing injury;

	d.  for the last 12 years of his service, he was assigned to the Military Intelligence Officer Excepted Career Program and he was awarded a Military Intelligence Officer AOC;

	e.  he received additional training including training as a Class II diver at the Navy Underwater Swim School;

	f.  he made more than 50 operational trips to Haiti and the Dominican Republic, during most of which he was in the water;

	g.  the Army Review Boards Agency (ARBA) can obtain classified briefings on the program to which he refers, his AOC, and perhaps even some of the history of the activity that would justify the LOD determination;

	h.  they did not believe him after the first post-retirement physical or any physical thereafter;

	i.  for the last 5 years he has been restricted to use of the telephone to his right ear since his left ear simply was not reliable enough;

	j.  it was also a great problem conversing with foreign clients who have been the balance of his employment for the last 15 years;

	k.  his hearing has degraded to the point that he is currently attempting to get an appointment with the local VA medical facility to get a hearing aid; and

	l.  he suspects that he will get the same story, namely his injury was not service-connected.

6.  The applicant submits email from an Army official apologizing for the inability to provide him with an LOD determination for his ruptured eardrum.  The Army official stated Combat-Related Special Compensation (CRSC) is only able to adjudicate disabilities that have previously been determined to be service-connected by the VA.  He was informed of his right to apply to ARBA for possible relief.

7.  He also submits an SF 513, dated 19 February 1971, showing he was seen at Ramey Air Force Base for a hearing impairment.  He complained of tinnitus and high frequency hearing loss, left ear.  The SF 513 shows his symptom of tinnitus began after snorkeling while he had an upper respiratory infection.  He had an ear block and persistent tinnitus.  The ear block subsided, but the hearing loss and tinnitus persisted.  The form notes noise exposure in the Republic of Vietnam or as a demolition expert.  He was diagnosed with tinnitus, mild inner ear damage hearing loss.

8.  Army Regulation 600-8-1 (Army Casualty Program), in effect at the time, states LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination.

	a.  The LOD determination is presumed to be "LOD - YES" without an investigation in the case of disease, except when the injury, disease, death, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence.

	b.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. 

9.  Documentation for an informal LOD investigation typically consists of a
DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the medical treatment facility (MTF) and the unit commander and approved by the appointing authority, State AG, or higher authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting documents have been considered.

2.  In accordance with the applicable regulation, LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination.

3.  The LOD determination is presumed to be "LOD YES" without an investigation in the case of disease, except when the injury, disease, death, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence.

4.  The SF 513 submitted by the applicant suggests that his tinnitus, mild inner ear damage hearing loss was due to noise exposure in Vietnam or as a demolition expert.  However, his medical records are not available for review.  Therefore, the evidence submitted by the applicant is an insufficient evidentiary basis for granting the applicant's requested relief in his case.

5.  By regulation, the Board considers a case based on the evidence of record and independent evidence it is provided.  The Board is not an investigative body and the burden of proving an error or injustice rests with the applicant.  In this case, the applicant’s request that the Board obtain classified briefings on the 

program to which he refers, his AOC, and perhaps even some of the history of the activity that would justify the LOD determination is not viable.

6.  The applicant has the option of requesting copies of any classified documents that he believes may assist him with his claim to the VA from the custodian of those documents.  Once the information is received, he should submit them to the VA and request that the claim be reconsidered.

7.  In view of the foregoing, his request should be denied.

BOARD VOTE:

________  ________  ________  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 that 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.

ABCMR Record of Proceedings (cont)                                         AR20110010261



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ABCMR Record of Proceedings (cont)                                         AR20110010261



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