DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-048 
 
XXXXXXXXXXXXXX. 
xxxxxxxxxxx, CS2 (former)  
   

 

 
 

FINAL DECISION 

 
Author:  Ulmer, D.  
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title  10  and  section  425  of  title  14  of  the  United  States  Code.    The  application  was 
docketed on January 12, 2005, upon receipt of the applicant’s completed application and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  November  17,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  Coast  Guard  military  record  by 
showing  that  his  hearing  loss  and  tinnitus  were  incurred  during  combat  in  Vietnam, 
while on active duty with the Coast Guard.  
 

The  applicant  is  a  retired  member  of  the  Air  Force,  having  retired  from  that 

Service in 1980.  He served in the Coast Guard from 1957 to 1968.  

 
On  September  2,  2004,  the  Air  Force  denied  the  applicant's  claim  for  Combat 
Related Special Compensation (CRSC),1 because it determined that his hearing loss and 
tinnitus  were  not  combat-related.  To  be  eligible 
for  combat-related  special 
compensation  a  retired  member  must  have  20  years  of  active  service  and  either  a 

                                                 
CRSC is a recently (2002) enacted law that allows certain retirees to receive both retired pay and disability 
compensation.   

combat-related disability or a Purple Heart-related disability that the DVA has rated to 
be at least 10% disabling. The applicant has  a service-connected disability for hearing 
loss and tinnitus from the Department of Veteran Affairs (DVA). 

 
The Coast Guard cannot grant CRSC to this applicant because under the law and 
Department of Defense regulation that determination is left to his parent service, the Air 
Force.   However, this Board can determine if the applicant's Coast Guard records are in 
error or unjust by not containing documentation or acknowledging that he was injured 
during combat in Vietnam while on active duty in the Coast Guard.  If the Board were 
to direct such a correction in this case, the applicant would still be required to ask the 
Air Force for reconsideration of his denied CRSC claim.   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that he incurred his hearing loss during combat in Vietnam 
while serving on active duty in the Coast Guard, but did not discover the alleged error 
in his record until April 9, 2002.  He stated that the Coast Guard cutter he was assigned 
to performed missions with the Navy and was under constant fire.  He stated that as a 
result  of  the  constant  firing  of  guns  and  other  munitions  he  began  to  have  constant 
ringing in his ears.  He stated that he went to the hospital for treatment but when he got 
there  and  saw  other  individuals  with  more  severe  injuries  he  felt  foolish  and  left 
without treatment.  He stated that he learned to live with the ringing in his ears until he 
was  told  during  his  Air  Force  retirement  physical  to  apply  to the DVA  for  disability.   
The applicant stated that he believes that his hearing loss is combat-related and that it 
worsened during his military career.   
 

SUMMARY OF THE RECORD AND SUBMISSIONS 

 
 
The applicant enlisted in the Coast Guard on September 27, 1957.  On September 
20,  1961,  he  underwent  a  physical  examination  for  the  purpose  of  extending  his 
enlistment.  The medical examination identified no changes from his earlier enlistment 
medical examination and the applicant was fit for duty/extension. 
 

On May 5, 1962, the applicant underwent a medical examination for the purpose 
of performing overseas duty.  No problems were noted during the examination and the 
applicant was found fit for duty. 

 
 
On  July  10,  1962,  the  applicant  was  medically  examined  for  the  purpose  of 
reenlisting  in  the  Coast  Guard.    No  significant  changes  were  noted  from  his  earlier 
medical  examination  and  he  was  found  fit  for  duty  and  permitted  to  reenlist  for  six 
years on July 20, 1962. 
 

On  May  5,  1965,  the  applicant  underwent  a  medical  examination  for  overseas 

On July 19, 1968, he was honorably discharged from the Coast Guard by reason 

On October 15, 1971, the applicant enlisted in the Air force and served until his 

 
assignment and was found fit for that duty.    
 
On  May  4,  1966,  a  page  7  (administrative  remarks  page)  was  entered  into  the 
 
applicant's  record  stating  that  he  had  served  on  board  a  Coast  Guard  cutter  for  10 
months and 15 days and that he was entitled to the Vietnam Service Medal.   
 
 
On  June  21,  1968,  the  applicant  underwent  a  medical  examination  for  the 
purpose of discharge from the Coast Guard.  No problems were noted with his hearing 
or with tinnitus, and he was found fit for discharge. 
 
 
of expiration of enlistment.   
 
 
retirement. 
 
 
On  July  10,  1979,  the  applicant  underwent  an  Air  Force  periodic  examination 
where his hearing loss was noted for the first time.  The applicant was still qualified for 
worldwide assignment.   
 
 
On  October  16,  1980,  the  applicant's  Air  Force  retirement  medical  examination 
noted the applicant's hearing loss, but found him qualified for retirement/separation. 
The  medical  report  stated  that  the  applicant  made  the  following  comments  about  his 
hearing loss:  "Hearing loss since 1961, no treatment indicated, examinee states he was 
exposed  to  hazardous  noise  throughout  his  military  career  in  noisy  kitchen  area, 
operating  river  gun  boats  in  S.  Vietnam  and  working  close  to  flight  line  area.    In  his 
opinion  this  exposure  caused  his  acoustic  trauma."    The  medical  report  noted  in  Sep 
1979  that  the  applicant  had  a  bilateral  high  frequency  sensori-neuro  hearing  loss  and 
was given permanent H-3 physical profile. 
 
DVA Records 
 
On September 3, 1986, the DVA granted the applicant a 10% disability rating for 
 
tinnitus and a 10% disability rating for bilateral hearing loss for a combined rating of 
20%.  The rating decision document states that the applicant's records from September 
30, 1957 to October 14, 1971 were unverified.   
 
 
A  May  30,  1986,  DVA  medical  note  reported  the  applicant  as  suffering  from 
deafness and continuous tinnitus.   The note also reported the applicant as saying that 
he first became aware of the hearing loss approximately 11 or 12 years earlier when he 
noticed that he was having difficulty in communication in his daily work and that he 
noticed ringing in his ears approximately 8 to 10 years earlier.  

 
 
On May 24, 2004, the applicant requested an increased disability evaluation from 
the DVA.   A July 28, 2004, audiologist's report stated that the applicant reported that he 
was a loader for firing 81-mortars while on a Coast Guard cutter and that he began to 
notice difficulties hearing and understanding speech at that time.   
 

On  December  18,  2004,  a  DVA  rating  decision  dated  noted  that  the  applicant's 
prior (Coast Guard) service had not been verified, but based on recent diagnostic testing 
test,  his  hearing  loss  disability  would  be  increased  from  10%  to  40%  and  his  tinnitus 
disability would be continued at 10%, for a combined 50% disability rating.    
 

VIEWS OF THE COAST GUARD 

 
On May 23, 2005, the Board received an advisory opinion from the Office of the 
 
Judge Advocate General (JAG).  He recommended that the applicant's request for relief 
be denied because it was untimely and for lack of proof of error or injustice.  
 

 In  recommending  denial  of  relief,  the  JAG  argued  that  the  application  was 
untimely.    He  stated  that  applications  for  correction of  military records  must  be  filed 
within three years of the date the alleged error or injustice was, or should have been, 
discovered.  33 CFR § 52.22.  He said that the Board may waive the statute of limitations 
and consider the case if an applicant presents sufficient evidence that it is in the interest 
of justice to do so.  The JAG stated that the length of the delay, the reasons for the delay, 
and the likelihood of the applicant's success on the merits of his claim are factors to be 
considered in deciding whether to waive the statute of limitations.  
 

The JAG stated that the applicant filed his application more than 36 years beyond 
the statute of limitations alleging that he did not discover the alleged error or injustice 
until  the  Air  Force  denied  his  CRSC  claim  in  2004,  but  did  not  otherwise  explain  the 
delay.  According to the JAG, the applicant has not provided good cause for not filing 
his application sooner.       
 

With respect to the merits of his claim, the JAG argued that the applicant has not 
presented  evidence  that  a  factual  or  legal  error  occurred  in  his  case.    He  stated  that 
although  the  applicant  offers  ample  evidence  of  his  service-connected  disability,  he 
offers  nothing  beyond  his  brief  statement  to  show  that  his  hearing  loss  is  linked  to 
combat service with the Coast Guard.  The JAG stated that in contrast to the applicant's 
view,  there  are  numerous  physical  examinations  including  the  discharge  medical 
examination that show no hearing loss.  The JAG stated that absent strong evidence to 
the  contrary,  government  officials  are  presumed  to  have  carried  out  their  duties 
correctly, lawfully, and in good faith.  Arens v. United States, 969 F.2d 1034, 1037 (1992).  
Moreover,  he  stated  that  the  applicant  bears  the  burden  of  proving  error  under  33 
C.F.R. § 52.24, and that he has failed to meet his burden in this case.  In this regard, the 

JAG  stated  that  the  Coast  Guard  committed  no  error  and  worked  no  injustice  and 
therefore, the applicant is not entitled to relief.   
 
The  JAG  attached  comments  from  the  Commander,  Coast  Guard  Personnel 
 
Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion.    CGPC  offered  the 
following comments with respect to the applicant's request: 
 

A  thorough  review  of  the  Applicant's  record  shows  no  evidence  that  he 
suffered any hearing impairments while in the Coast Guard.  While it is 
possible that the Applicant's bilateral hearing loss might be related to his 
service  in  South  Vietnam,  the  Applicant's  subsequent  years  in  Coast 
Guard service and physical evaluations make a direct linkage implausible.  
The  Applicant  was  evaluated  in  1961,  1965,  and  1968  and  successfully 
reenlisted  in  the  United  States  Air  Force  in  1971  with  no  diagnosis 
associated with hearing loss. 
 
At the time of his discharge, the Applicant was physically examined and 
found  to  be  fit  for  separation  in  1968.    The  cause  for  the  Applicant's 
separation  was  due  to  Expiration  of  Enlistment.    I  find  no  error  in  that 
finding.   
 
While being processed for retirement from the United States Air Force in 
1980,  the  Applicant  stated  in  his  retirement  examination  that  he 
experienced hearing loss since 1961.  However at that time he had already 
been separated from the Coast Guard for more than 12 years. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 2, 2005, the BCMR received the applicant's response to the views of the 
Coast  Guard.    With  respect  to  the  delay  in  filing  his  claim,  he  stated  that  since  he 
believed that his hearing lose was combat-related and there was no CRSC until recently, 
there was no reason for him to file a claim earlier.   
 
 
Vietnam while serving on active duty with the Coast Guard.  
 

The applicant reasserted his belief that his hearing loss was linked to combat in 

APPLICABLE LAW AND GUIDANCE 

10 U.S.C. 1413a.  

 

 

Section  1413a.  (Combat-related  special  compensation)  of  title  10  of  the  United  States 
Code provides for the following: 
 

"(a)  Authority.    The  Secretary  concerned  shall  pay  each  eligible  combat-related 
uniformed services retiree who elects benefits under this section a monthly amount for 
the combat-related disability of the retiree determined under subsection (b). 
 
"(b) Amount.  (1) Determination of monthly amount.  Subject to paragraphs (2) and (3), 
the monthly amount to be paid an eligible combat-related disabled uniformed services 
retiree under subsection (a) for any month is the amount of compensation to which the 
retiree  is  entitled  under  title  38  for  that  month,  determined  without  regard  to  any 
disability for the retiree that is not a combat-related disability  . . .   
  
"(c)  Eligible retirees.   For purposes of this section, an eligible  combat-related disabled 
uniform  services  retiree  referred  to  in  subsection  (a)  is  a  member  of  the  uniformed 
services entitled to retired pay who--(1) has completed at least 20 years of service in the 
uniformed services that are creditable for purposes of computing the amount of retied 
pay to which the member is entitled or is entitled to retired pay under section 12731 of 
this title . . . (other than by reason of section 12731b of this title . . . and (2) has a combat-
related disability.   
 
"(d) Procedures.  The Secretary of Defense shall prescribe procedures and criteria under 
which  a  disabled  uniformed  services  retiree  may  apply  to  the  Secretary  of  a  military 
department to be considered to be an eligible combat-related uniform services retiree.  
Such procedures shall apply uniformly throughout the Department of Defense.2 
 
"(f) Combat-related disability.  In this section, the term 'combat-related disability' means 
a  disability  that  is  compensable  under  the  laws  administered  by  the  Secretary  of 
Veterans Affairs and that --  (1) is attributable to an injury for which the member was 
awarded  the  Purple  Heart;  or  (2)  was  incurred  (as  determined  under  the  criteria 
prescribed  by  the  Secretary  of  Defense)--  (A)  as  a  direct  result  of  armed  conflict;  (B) 
while engaged in hazardous service; (C) in the performance of duty under conditions 
simulating war; or (D) through an instrumentality of war."   
 
Department of Defense (DOD) CRSC Program Guidance 
 

DOD Combat-related Special Compensation Revised Program Guidance January 
2004  states  that  the  following  criteria,  terms,  definitions,  explanations  will  apply  to 
making combat-related determinations in the CRSC program. 

                                                 
2      CGPC  informed  the  BCMR  staff  that  it  follows  the  CRSC  guidance  provided  by  the  Department  of 
Defense in processing its CRSC claims.   
 
 

 

"Direct Result of Armed Conflict - The disability is a disease or injury incurred in 
the  line  of  duty  as  a  result  of  armed  conflict.    The  fact  that  a  member  incurred  the 
disability during a period of war or an area of armed conflict or while participating in 
combat  operations  is  not  sufficient  to  support  a  combat-related  determination.    There 
must  be  a  definite  causal  relationship  between  the  armed  conflict  and  the  resulting 
disability.  
 

"Armed  conflict  includes  a  war,  expedition,  occupation  of  an  area  or  territory, 
battle skirmish, raid invasion, rebellion, insurrection, guerilla action, riot, or any other 
action  in  which  Service  members  are  engaged  with  a  hostile  or  belligerent  nation, 
faction, force, or terrorists.   
 

"Armed  conflict  may  also  include  such  situations  as  incidents  involving  a 
member while interned as a prisoner of war or while detained against his or her will in 
custody  of  a  hostile  or  belligerent  force  while  escaping  or  attempting  to  escape  from 
such confinement, prisoner of war, or detained status.   
 

"While Engaged in Hazardous Service - Such service includes, but is not limited 
to aerial flight, parachute duty, demolition duty, experimental stress duty, and diving 
duty.  A finding that a disability is the result of such hazardous service required that the 
injury or disease be the direct result of actions taken in the performance of such service.  
Travel  to  and  from  such  service,  or  actions  incidental  to  a  normal  duty  status  not 
considered hazardous are not included.   
 

"In the Performance of Duty Under Conditions Simulating War - In general this 
covers disabilities resulting from military training, such as war games, practice alerts, 
tactical exercises, airborne operations, leadership reaction courses, grenade and live fire 
weapons  practice,  bayonet  training,  hand-to-hand  combat  training,  repelling  and 
negotiation  of  combat  confidence  and  obstacle  courses.    It  does  not  include  physical 
training activities such as calisthenics and jogging or formation running and supervised 
sport activities.   
 

"Instrumentality  of  War  -  Incurrence  during  an  actual  period  of  war  is  not 
required.  However,  there  must  be  a  direct  causal  relationship  between  the 
instrumentality of war and the disability.  The disability must be incurred incident to a 
hazard or risk of the service."   
 

FINDINGS AND CONCLUSIONS 

 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
 
applicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and 
applicable law: 

 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   
 

2. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair, 
acting pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 
 
 
3.  The applicant's request is not timely. To be timely, an application or request 
for  correction  of  a  military  record  must  be  submitted  within  three  years  after  the 
applicant  discovered  or  should  have  discovered  the  alleged  error  or  injustice.    See  33 
CFR 52.22.  The statute of limitation on the applicant's claim expired in July 1971, prior 
to his enlistment in the Air Force.  In this regard the Board notes that the applicant was 
discharged from the Coast Guard in July 1968 and enlisted in the Air Force in October 
1971.  Therefore, his application was filed approximately 33 years beyond the statute of 
limitations.     
 

4.  However, the Board may still consider the application on the merits, if it finds 
it is in the interest of justice to do so. In Allen v. Card, 799 F.  Supp. 158, 164 (D.D.C. 
1992), the court stated that in assessing whether the interest of justice supports a waiver 
of the statute of limitations, the Board "should analyze both the reasons for the delay 
and  the  potential  merits  of  the  claim  based  on  a  cursory  review."    The  court  further 
stated that "the longer the delay has been and the weaker the reasons are for the delay, 
the more compelling the merits would need to be to justify a full review."  Id. at 164, 
165.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

 
5.  The applicant's statement that he did not discover the alleged error until April 
9, 2002 is not persuasive.  Based on the numerous Coast Guard medical examinations, 
including his separation physical, the applicant should have known at the time of his 
discharge from the Coast Guard that there  were no medical findings that he suffered 
from  a  hearing  loss  or  tinnitus,  and  that  none  of  his  military  records  at  that  time 
contained  any  documentation  that  he  suffered  a  combat-related  injury  of  any  sort.  
Accordingly,  if  the  applicant  disagreed  with  these  medical  findings  and  his  military 
record, he should have submitted an application for correction earlier.   

 
6.  With respect to the merits of his claim, the Board finds that the applicant is not 
likely to prevail on them.  Therefore, his claim should be denied because it is untimely.  
However, if the applicant had put forth persuasive evidence that his hearing loss and 
tinnitus were linked to combat in Vietnam, the Board probably would have waived the 
statute  of  limitations  in  the  interest  of  justice  because  Congress  only  recently  (2002) 
enacted  the  law  that  granted  certain  members  entitlement  to  both  retired  pay  and 
disability compensation. Prior to the enactment of the CRSC law in 2002, there was no 
real benefit to be gained from having a disability designated combat-related as opposed 

to  service-connected.    Therefore,  if  evidence  were  present  in  the  record  that  the 
applicant suffered a combat-related injury, the Board would probably waive the statute 
of  limitations  in  the  interest  of  justice.  However,  the  evidence  of  record,  as  discussed 
below, does not establish that the applicant is likely to prevail on his claim.  

 
7.    Although  the  applicant  served  in  Vietnam  for  approximately  ten  months, 
there is nothing in the Coast Guard military record, including his medical record, that 
connects the applicant's current hearing loss and tinnitus to combat in Vietnam. None of 
his  Coast  Guard  medical  examinations  show  that  he  even  incurred  a  hearing  loss  or 
tinnitus while in the Coast Guard.  In addition, his Air Force medical examinations fail 
to corroborate his claim.  The applicant's hearing loss was not documented by the Air 
Force until 1979 during a medical examination eleven years after his discharge from the 
Coast Guard. The examining physician did not offer a medical opinion or explanation 
for the cause of the applicant's hearing loss.  Neither did the 1980 Air Force retirement 
medical examination report offer a medical opinion or explanation for the cause of the 
applicant's disability. It only reported the applicant's statement that "he was exposed to 
hazardous  noise  throughout  his  military  career  in  noisy  kitchen  area,  operating  river 
gun boats in S. Vietnam and working close to flight line area," which is insufficient to 
establish  that  his  disabilities  resulted  from  combat  in  Vietnam.    Further,  the  DVA 
medical reports are not corroborative of the applicant's claim because, again, they only 
report what the applicant told clinicians.  The DVA admitted that it did not verify the 
applicant's  Coast  Guard  service.      The  applicant  has  not  provided  proof  by  a 
preponderance of the evidence that his hearing loss and tinnitus are directly related to 
combat in Vietnam.  Accordingly, he has not shown that his Coast Guard record is in 
error or unjust.     

 
8.  By way of explanation, even if the Board were to correct the applicant's record 
(which it  will  not) to say that his  hearing loss and tinnitus were related to combat in 
Vietnam  while  on  active  duty  with  the  Coast  Guard,  such  is  probably  insufficient  to 
establish combat relatedness for CRSC purposes.  In this regard, DOD Combat-related 
Special  Compensation  Revised  Program  Guidance 
January  2004  states,  "An 
uncorroborated statement in a record that a disability is combat-related will not, in and 
of  itself,  be  considered  determinative  for  purposes  of  meeting  the  combat-related 
standards for CRSC prescribed herein."  
  

9.    Accordingly,  due  to  the  length  of  the  delay,  the  reason  for  not  filing  his 
application  sooner,  and  the  probable  lack  of  success  on  the  merits  of  his  claim,  the 
Board finds that it is not in the interest of justice to waive the statute of limitations.  The 
application should be denied because it is untimely.    
 
 
 
 

 
 
 
 

The application of former CS2 xxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

ORDER 

 

 
 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Elizabeth F. Buchanan 

 

 

 

 
 
 Donald A. Pedersen 

 

 

 
  Darren S. Wall