BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001997 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001997 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001997 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, in effect, that his 30 April 1946 honorable discharge be corrected to show he was medically retired and award of all associated pay retroactive to his date of discharge. Further, he requests that he be allowed to personally appear before the Board. 2. The applicant defers his statement to counsel. 3. The applicant provides: * Legal brief * News Articles * Discharge Records * Department of Veterans Affairs (VA) Decision, dated 23 December 1999 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: Counsel states: a. Immediately following the applicant’s graduation from boot camp, he attended surveying school and correspondence school at Camp Claiborne, LA. After successfully completing these courses in 1944, the applicant was selected with about 20 other African American Soldiers from different commands to be test subjects for experiments performed at a remote location in Louisiana for a period of 30 days. During these experiments, he and other Soldiers were deliberately exposed to various chemical gas warfare agents, including mustard gas and lewisite (hereinafter referred to as mustard gas). The mustard gas immediately caused painful, debilitating and disfiguring chemical burns to the applicant’s skin. To make it worse, the men were not required to shower after being exposed to the mustard gas and continued to wear their contaminated clothing even while sleeping. Half of the men were too sick to continue at the end of the thirty-day period and were taken away. The applicant’s skin ailment from the mustard gas became a chronic, lifelong affliction marked by painful blisters and infections. Notably, the U. S. Government has known since World War I that exposure to mustard gas could cause the same kind of chronic injury as the one that has afflicted the applicant. b. Immediately following the mustard gas testing. The applicant was given a sealed envelope to deliver to the company commander of his unit, the 1329th Engineer General Service Regiment. Upon receipt of the sealed envelope, the commander informed the applicant that he was exempted from any further duties or responsibilities. This directive exempting the applicant from further duties and responsibilities is clearly an admission that the applicant was unfit to perform the duties of his rating because of his medical condition. While he was exempted from performing his duties for which he was trained (i.e., surveying and correspondence), he remained with his unit in the European and Pacific Theaters throughout the remainder of the war. c. Throughout his service, he suffered from painful blisters and infections. His skin condition was aggravated by the harsh heat and humidity while in the Pacific Theater. While serving in Japan, a military doctor gave him sixty injections of penicillin to treat his infections. d. Despite the Army's knowledge that the applicant was suffering from a chronic and debilitating skin condition caused by mustard gas experiments and that this condition prevented him from performing the duties of his rank/rating, he was never given a medical examination or evaluation in connection with his discharge. Had the Army provided such an examination, he clearly would have been deemed eligible for a full medical discharge. e. Due to the top-secret nature of the mustard gas experiments, the applicant was sworn to secrecy by the U. S. Government and was told if he disclosed the experiments, he would be sent to jail. The U. S. Government formally declassified the mustard gas experiments in 1993, at which time the applicant filed a disability claim with the VA. While the applicant was ultimately granted VA disability benefits in 1999 (retroactive to 1993), he was forced to suffer in silence between 1946 and 1993 without any medical benefits or compensation. 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. The applicant's military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there are sufficient documents available for the Board to conduct a fair and impartial review of this case. 3. His WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Discharge) shows: a. He was inducted into the Army of the United States on 24 January 1944. b. His military occupational specialty number was 566 (Duty Noncommissioned Officer (NCO)). c. He completed Chemical NCO training (4 weeks) at the Army Service Training Center in July 1944. d. He served in the European and Pacific Theaters from January 1945 to April 1946. 4. His record contains Daily Sick Reports that show while he was assigned to the 1329th Engineer General Service Regiment he was reported sick on 28 June, 3 July, 6 July, and 4 September 1944. These reports do not list the reason for his illness. 5. His DA Form 100 (Army of the United States – Separation Qualification Record) shows he completed 3 months of Chemical Warfare Basic Training and he served 21 months as a duty NCO. This document further shows in: a. Item 13 (Summary of Military Occupations-Title-Description-Related Civilian Occupation) the entry – DUTY NCO: Served with the 1329 Engineer General Service Regiment in the Philippine Islands and Japan. Was in charge of various labor details for performing necessary duty in regiment. Was responsible for keeping every man on job and for satisfactory completion of job. Was required to know best methods of doing various jobs in company, such as cutting grass, keeping area, and cleaning various buildings and offices. b. Item 14 (Military Education) the entry: ASF Technical School-Camp Claiborne, Louisiana-Chemical NCO- 4 Weeks. Instruction included study of war gases, defense against chemical attack, and tactical employment of gases. Special emphasis was placed on first-aid for chemical casualties, use of protective clothing and equipment, incendiary bombs, handling and storage of chemical agents, and operation and maintenance of decontaminating equipment. 6. The Army Surgeon General database shows the applicant was hospitalized in January 1944 and again in December 1945 (21 days) for treatment of a sexually transmitted disease. 7. On 30 April 1946, he was honorably discharged under the provisions of Army Regulation 615-365 for the convenience of the Government (demobilization) in the rank of sergeant. He completed 2 years, 3 months, and 8 days of active service of which 1 year, 3 months, and 27 days was foreign service. 8. The applicant provides: a. News articles from 1997, wherein he stated he and several other Soldiers were injected with and exposed to mustard gas while assigned to Camp Claiborne, LA. The government admitted earlier to performing chemical testing on its own troops, but not at Camp Claiborne. The applicant also contends that after the experiment he was assigned to Europe where the climate further aggravated his skin condition. Subsequently, he became sick with yellow jaundice and was told he would need to be administered 60 penicillin shots. These shots made him sterile. The author of the article stated the applicant was covered with dry, blistered, raw skin on every part of his body with the exception of his face. b. His Board of Veterans’ Appeals Docket Number 94-35 279, dated 23 December 1999, wherein he requested service connection for a skin disorder and for a left eye disorder as a result of exposure to mustard gas. The VA Appeal Board found that he had presented credible evidence, which established that he experienced full-body exposure to nitrogen or sulfur mustard in service during World War II. As a result, his skin disorder was determined to be incurred in wartime service. There was insufficient evidence of a service connection for his left eye disorder. 9. The Army Review Boards Agency Medical Advisor reviewed the available military personnel/medical records and Board of Veteran’s Appeals Docket Number 94-35 279. He provided the following summary: a. The available service medical records include daily sick reports which show the veteran was seen on four separate occasions in June, July, and September 1944 for unspecified complaints, after which he was returned to duty on each occasion. Hospital admission cards created by the Office of the Surgeon General of the Department of the Army show diagnoses of unrelated “genitourinary disorders” (illnesses that occur when the urinary organs and genital organs are not functioning properly) in January 1944 and December 1945. b. Post service outpatient records disclose that in February 1983 he was seen with complaints of a rash that came and went. He felt a bite, scratched it, and then a bump appeared. The examiner noted “that this had been a life-long problem which usually affected the elbows, wrists, inguinal area and buttocks, and which persisted for a while and then faded…” c. A VA dermatological examination, dated May 1993, shows the applicant gave a history of in-service exposure to multiple toxic gases in a training program at Camp Claiborne, LA. He stated he was involved in several experimental studies with mustard gas, lewisite, and tear gas at a secret camp wherein he was supplied with a gas mask, but no other protective gear or clothing for his body. d. A VA dermatological examination, dated June 1993, shows the applicant gave a history of LSC (lichen simplex chronicus) since exposure to nitrogen mustard gas in 1944. After the examination, the assessment was LSC of the right lower leg, and the examiner opined there was no known association between LSC and nitrogen mustard gas. The applicant asserted his left arm was injected with mustard gas, a process he described as tattooing. He also stated the mustard gas got into his left eye during training in the use of gas masks, which served as the basis for his current claim for service connection for a left eye disorder. e. The U.S. Army Chemical and Biological Defense Command (CBDCOM) at Aberdeen Proving Ground, MD, notified the applicant and the VA Regional Office in December 1996 that the facility had no service medical or personnel records pertaining to the applicant. Further, the applicant’s name did not appear on any historical documentation as a test subject and that Camp Claiborne did not appear in any documents as a test site. CBDCOM stated Camp Claiborne did conduct chemical warfare training during World War II, as evidenced in contemporaneous 1942 military Chemical Warfare Newsletters, and the 4-week ASF Training Center Chemical NCO course the applicant completed in July 1944, which may have utilized actual chemical warfare agents in limited quantities, or simulated chemical agents. f. With respect to the claim the veteran participated in a “drop” test wherein a small amount of mustard agent was dropped on the inside of his left arm from a syringe, the CBDCOM stated that, although a training directive labeled this procedure a mustard skin “test,” it was in effect only a standard training exercise used during and after World War II in many locations where U. S. troops were trained or stationed. The use of this training exercise may never have been recorded in the Soldier’s personnel file, inasmuch as it was a widely used exercise. g. A limited review of VA records through the Joint Legacy Viewer shows 26 problems that included the following skin/dermatological conditions: Psoriasis and erythroderma, as well as chronic PTSD, anxiety disorder, nightmares, and others. The applicant is 80-percent service connected overall (erythroderma is service connected for exposure to mustard and lewisite gas in the 1940’s). 10. The medical advisor concluded that: a. There is no available record that would reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant’s military service. b. The applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. c. The applicant’s medical conditions were considered during medical separation processing. d. A review of the available documentation found no evidence of a medical disability or condition which would support a change of the reason for discharge in this case. 11. On 24 March 2017, the applicant’s counsel was provided the ARBA Medical Advisor’s advisory opinion for response or rebuttal. 12. On 1 May 2017, the applicant’s counsel responded to the above advisory opinion and provided: * applicant’s Sworn Affidavit, dated 1 May 2017 * letter, undated, from a VA Licensed Independent Social Worker-Clinical Practice, reporting she has treated the applicant’s PTSD and claustrophobia for 10 years 13. Counsel stated the applicant’s credibility is highly relevant to the Board’s decision. Accordingly, he respectfully requests the opportunity to have the applicant address the Board in person and allow the Board to question him under oath and determine his veracity and credibility firsthand. 14. Counsel contends the medical advisor failed to take into account the extent of the applicant’s exposure to mustard gas. The applicant’s sworn affidavit describes in detail the manner in which the gas experiments were conducted, its impact on his health, and how it prevented him from performing the duties of his grade/rank. Counsel provides a summary of the applicant’s Sworn Affidavit which states: a. In the early summer of 1944, the applicant and approximately 20 other African American Soldiers were transported to a test site near Glenmora and Oakdale, LA, for experiments, presumably to determine the effects of mustard gas and lewisite on black skin. b. The experiments took place over a 30-day period and the men were exposed to a barn-like plywood building, a muddy trench, and field. The test site was carefully selected as it could not be conducted on farmland, cattle grazing land, or near streams, due to the risk of contamination. c. Approximately three times a week the men were ordered to enter the building and told not put on their gas masks until they were so ordered. Once they entered the building, the doors were locked to prevent the men from exiting prematurely. Mustard or lewisite gas was pumped into the building and the men were forced to remain in the building for various periods, as long as 30 minutes. d. On numerous occasions, the men were subjected to simulated gas attacks in which a gas canister exploded overhead and the men were required to crawl along the ground and in the muddy trench repeatedly. e. Upon exposure to the gases, the applicant’s skin burned “like a million fire ants biting” him and immediately his skin became irritated and itchy, followed by the formation of intensely painful blisters where the gas came into contact with his skin. He also felt nauseated and vomited. f. For each test, the men were told to keep their gas masks off until they were instructed to put them on. As soon as the doors closed, the applicant donned his gas mask. Those who did not place their gas masks on until ordered began choking and vomiting into their gas masks. When they were allowed to exit, some of these Soldiers were unable to breathe and had to be taken away for medical treatment. g. The men were not decontaminated or advised to take showers on a daily basis. The applicant showered daily. Throughout the 30-day period, both day and night, the men wore the same uniforms, which had become contaminated with the chemicals. The applicant believes that wearing the contaminated uniform combined with the sweat from the wet muggy weather made his medical condition worse. h. During the last week of the experiments, the applicant was too sick to participate and he was sent to a hospital, where he remained for 3 days before being sent back to the test site. At the end of the 30-day experiment, the applicant’s face and hands were blistered and infected. i. The applicant and the other Soldiers were ordered to never reveal the experiments and were told they would spend the rest of their lives at Fort Leavenworth if they disclosed it to anyone. j. Following the mustard gas testing, the applicant was given a sealed envelope to deliver to the commander of his assigned command. He delivered the closed envelope to his company commander. Upon receipt of the sealed envelope, the applicant’s company commander informed the applicant that he was exempted from any further duties or responsibilities. k. Notably, the applicant believes he was excused from duty because the officers and officials involved in the gas testing were aware of his medical condition as a result of the gas experiments and believed he was physically unfit to perform the duties of his rating. l. While the applicant was exempted from performing the duties for which he was trained, he remained with his unit in the European and Pacific Theaters throughout the remainder of the war. Unfortunately, his skin condition continued to form painful blisters and to become infected, which prevented him from carrying out those duties. m. At one point, a military doctor gave him sixty injections, one every three hours for more than a week, of penicillin to treat the infection. While it temporarily stopped the infection, it also made him sterile. n. The applicant began having nightmares and suffering from PTSD about the experiments shortly after March/April 1944. In some of his dreams, he is in the plywood building with gas entering and he is unable to escape. In others, he is facing a poisonous snake in the muddy trench. o. The applicant does not recall being given a discharge examination. At the time of his discharge, the chemical burns, blisters, and infections were obvious. If he had been given a discharge examination, the medical officer would have noted the chemical burns, blistering, and infection throughout his body, including his face. p. Because of the top-secret nature of the experiments, the applicant felt obligated to play down his skin condition because discussing it could have resulted in the secret information being divulged. q. The applicant arrived home after being discharged and his mother was horrified by the condition of his skin. r. Since being exposed to high doses of mustard gas in March and April 1944, the applicant has continuously suffered from irritations and itchiness around his scars, as well as, painful blisters and infections. Notably, this condition began while he was on active duty. 15. Counsel further contends that: a. The medical advisor failed to take into account the toxicity and medical effects of the applicant’s exposure to mustard and lewisite gas. Counsel references “Chemical Warfare and Medical Response During World War I,” which describes the effects of mustard gas as a “vesicant (similar to lewisite) that produced large blisters on any area of contact. Particularly severe blisters emerged when uniforms were soaked in mustard gas.” Despite, the Army’s knowledge that the applicant was suffering from a chronic and debilitating skin affliction, caused by the mustard gas and lewisite experiments, which prevented him from performing the duties of his rank and rating, and that his face and hands were covered with blisters, he was not given a medical examination at the time of his discharge. b. The only school the applicant completed was surveying and the “AFSTC Chemical NCO School” listed on his WD AGO Form 53-55, which was in fact the experimentation in which the applicant and other Soldiers were used as guinea pigs to determine the effects of mustard gas and lewisite on black skin. While the Army had no record of any chemical gas warfare training conducted at Camp Claiborne, this entry on the applicant’s WD AGO Form 53-55 corroborates the experiments occurred during this time period as affirmed by the applicant. c. The medical advisor failed to take into account that the applicant suffered from PTSD while on active duty as a result of the experiments. Counsel states the applicant recounts in his Sworn Affidavit to having nightmares, flashbacks, and claustrophobia. The applicant was sworn to secrecy regarding the experiment and this prevented him from seeking medical benefits from the government. REFERENCES: 1. Department of Defense Mustard Gas Testing Subcommittee Hearing met on 10 March 1993 to learn more about the circumstances and effects of the testing of mustard gas and other agents during and following World War II on service members who either volunteered or were volunteered to participate in these tests. According to the Institute of Medicine, some 60,000 veterans were used as human experimental subjects and were exposed to mustard gas and lewisite agents while participating in militarily supervised tests. The complete document is located at: https://archive.org/stream/departmentofdefe1993unit#page/n5/mode/2up/search/barney+frank 2. Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge, which were issued to enlisted Soldiers who were permanently unfit for further military service because of wounds or disease. 3. Section 61 of Title 10, U.S. Code, amended by Public Law Number 140, dated 30 June 1941, extended disability retirement to Army enlisted Soldiers with 20 or more years of service to be retired for disability. 4. Prior to 1 October 1949, on which date the Career Compensation Act of 1949, Public Law 351, 81st Congress, became effective, compensation for service-connected disabilities was under the jurisdiction of the VA. This Act vested the administration of payment of disability retirement pay in the Secretary of the Army. 5. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 6. Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. 7. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 8. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requested a personal appearance before the Board; however, the applicant’s Sworn Affidavit, the ARBA Medical Advisory, VA disability findings, and the available records are sufficient to consider this case. Therefore, a formal hearing is not merited. If the applicant is not satisfied with the results of the informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board. 2. Counsel contends the Army was aware the applicant was suffering from a chronic and debilitating skin condition that was caused by mustard gas experiments at the time of discharge. This skin condition prevented him from performing the duties of his rank and rating. Based on the reasons above, counsel requests the applicant be awarded a retroactive medical retirement with all associated back pay. Counsel contends this experimentation was the catalyst for the applicant’s PTSD. 3. In 1993, federal officials confirmed for the first time that the military conducted mustard gas experiments on enlisted men during World War II. Consequently, the applicant’s skin condition resulting from his exposure to mustard gas and his PTSD diagnosis are not in question. However, the Army must find unfitness for duty before a member may be medically retired or separated. 4. Counsel points to numerous injustices that occurred during the applicant’s period of service and continue to affect him. In effect, he argues the applicant completed training to be a surveyor. The entry on his WD AGO Form 53-55 showing he attended a chemical course is evidence this secret experiment occurred. Further, counsel states the applicant’s medical condition prevented him from performing the duties of a surveyor and as such, he should have received a medical evaluation and been medically retired. 5. Counsel and the applicant contend that after the mustard gas experiment the applicant’s commander informed him he could no longer perform the duties of a surveyor and that this directive exempting him from his duties and responsibilities was a clear admission the applicant was unfit to perform the duties of his rank/grade because of his medical condition. The available record contains no evidence that shows he was trained as a surveyor, but it does show he was trained as Duty NCO and he completed the Chemical Warfare Training Course. It further shows after his chemical training the applicant went on to serve as a Duty NCO, he complete 21 months of overseas service in the Philippines and Japan, and he was promoted to the rank of SGT. Given his achievements, it can be presumed that any medical condition he may have suffered from did not prevent him from performing the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. 6. The available evidence does not show the applicant was treated for a skin condition while on active duty or that such a condition prevented him from performing his duties. The ARBA medical advisor reviewed all of the available medical records and determined that during the applicant’s period of service, he was reported sick on four occasions for unknown reasons, treated for a sexually transmitted disease on two occasions, and there was no evidence of PTSD or any other behavioral health or medical condition that would have warranted a disability discharge. 7. Unfortunately, the lack of sufficient records and the passage of time makes it difficult to definitively determine the severity of his medical condition at the time of his discharge. It is acknowledged that medical conditions may worsen over time; however, the Army’s rating is dependent on the severity of the unfitting conditions at the time of separation. The VA has the responsibility and jurisdiction to recognize changes in conditions over time by adjusting a disability rating. An award of a VA rating does not establish entitlement to medical retirement or indicate the Army failed to properly evaluate the Soldier at the time of discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001997 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001997 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2