MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           5 December 2000                   
	DOCKET NUMBER:   AR2000043726

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell 		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, physical disability retirement or separation.

The applicant, in a 30 May 2000 letter, makes reference to serving in the Army on 16 May and 17 May of this year, and to a report of a radiation experiment with the Army during the cold war.  He states that a doctor had access to his Army medical records, which showed his treatment during his service.  He continues by citing his other problems with doctors, the VA, and the Social Security Administration.  He cites an incident during his military service.

In a 17 May letter the applicant states that his medical records were damaged by altering and destroying parts of the records.  He states that he found the film that his records were on and made copies, which he sent to the VA regional office in Tennessee, Georgia, and Ohio in order to settle his disability claim.  He received a 50 percent disability for his hearing loss.  He was diagnosed as being disabled for further military service by a hospital in Hawaii, after being placed under a heat lamp, which brought out his skin cancer.  He was losing weight and sure that he had cancer.  The doctor ordered him to go to the post exchange and get drunk and sent a medic with him to see that it happened.  The medic got drunk.  He states that the doctors committed wrong doings.  His life has been destroyed by the false accusations by doctors and others.

In a 15 September 2000 letter the applicant requests the status of his claim concerning the VA giving him radiation.  He states that he was not aware they were giving him radon and radiation to try to cure his skin cancer.  That treatment gave him lung cancer, resulting in the removal of his lung.  He participated in research for over 2 years, and took nothing but pain pills for one year.  He filed his claim through the VA regional office at Cleveland, and was informed that it was the fault of the Army.      

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

The applicant’s certification of his Honorable Discharge shows that he entered on active duty on 23 October 1942. 

Medical records in November and December of 1943 show that the applicant was treated for various ailments, to include pain in his back.  One entry on the record indicates that the examining physician felt that the applicant was a hypochondriac.

Medical records in April and May 1945 show that the applicant was treated for gastro neurosis, problems with his ears, headache, and general weakness.  

A WD AGO Form Number 38, Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release From Active Duty or Retirement, dated   21 July 1945, shows that the applicant stated that he could not hear out of his left ear, and that he incurred that condition while in the Army.  That form also showed that the applicant had a psychopathic personality, emotional immaturity, and inadequate personality, that existed prior to his service (EPTS).  It did show a retraction in both drums.  The form stated that the applicant was inapt and had a lack of adaptability to military service because of numerous somatic complaints, emotional instability, immaturity, and inadequate personality.

The applicant was discharged on 22 July 1945 at Fort McPherson, Georgia, under the provisions of Army Regulation 615-369.  He had 2 years, 8 months, and 20 days of service and 24 days of lost time.  

A 1976 clinical record shows that the applicant had been discharged from the Cincinnati VA hospital for a lip shave and was readmitted for nasal reconstruction and a face lift, among other things.  

Medical records, dated in 1977, indicate a request for administration of anesthesia and for performance of operations and other procedures to remove a bone and/or a cartilage from inside the applicant’s nose to improve air way and appearance, to lift the brow upward; and to remove excess skin for the purpose of reducing facial wrinkling to improve appearance and improve appearance of lip scar.

On 2 March 1977 the applicant underwent blephroplasty and on 14 March 1977 he underwent rhytidoplasty.  On 30 March 1977 he underwent bilateral brow lift and septorhinoplasty.  

On 26 October 1978 the applicant consented to participate in a research study conducted by the Vanderbilt University Medical Center in a lung cancer study group protocol 773:  a clinical trial in stage II and III epidermoid carcinoma of the lung of radiotherapy and immunotherapy as an adjuvant to surgery.

Army Regulation 615-369, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for inaptitude, unsuitability
(which meant a lack of the required degree of adaptability) or enuresis.  Lack of adaptability could be caused by insufficient physical stamina; transient
personality reactions; or character and behavior disorders such as schizoid, paranoid, cyclothymic, inadequate and immature personalities.  The regulation
could not be applied to persons who had any disqualifying mental or physical defect.  Although a general discharge was customary for separation under this regulation, an honorable discharge was authorized. 

Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, there was no provision of law whereby an enlisted man with less than 20 years of service could be discharged with severance pay or be retired by reason of physical disability.  Under then existing law, compensation for service-connected disabilities was entirely under the jurisdiction of the VA.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 22 July 1945, the date of his discharge. However, in view of the fact that the board was not established until                     2 January 1947 the applicant’s 3 year period in which to file an application for correction of military records expired on 2 January 1950, 3 years from the date the Board was established.

The application is dated 30 May 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___amc__  ___jam__  ___alr___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000043726	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
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.  177	142.00	
2.	108.00	
3.		
4.		
5.		
6.