MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 29 JANUARY 2002
         DOCKET NUMBER: AR2001062153


         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:

Mr. Arthur A. Omartian		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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)

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APPLICANT REQUESTS: In effect, physical disability retirement.

In effect, he states that his prostate cancer resulted from his military service. He was in the hospital with malaria, but when he was discharged his papers [medical records] were not properly annotated. His service connected malady was never entered on his “burn” records, after they were reconstructed. He states that cancer of the prostate is the slowest [type of cancer] to develop. He was in the Philippines where he caught malaria and where he had kidney problems. He states that clerks failed to pursue his application, to include dental follow-up. He is also diabetic.

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 show:

The applicant was inducted into the Army on 21 October 1944, served in the Asiatic Pacific Theater of Operations, to include service in the Philippines, during World War II, and was honorably discharged at Fort Meade, Maryland on 11 November 1946. His 27 September 1946 report of physical examination (WD AGO Form 38) shows that he had bouts of malaria 4 times in September 1946 while on a hospital ship. There were no other diseases or injuries noted on that report.

The applicant enlisted in the Army on 9 May 1947 and was honorably discharged on 24 January 1950 at Fort Belvoir, Virginia. His 17 January 1950 report of medical examination shows that he was medically qualified for discharge with no defects and no diagnosis.

On 29 August 1997 the VA indicated that there was no record that the applicant was treated in the service for sclerosis of the liver, ringworm, or spot on the spine. It stated that VA outpatient dental treatment could be furnished for a condition or disability which was due to trauma from combat wounds or other service injuries, but there was no evidence to show dental trauma during the applicant’s military service.

In a 9 July 1998 decision the VA denied the applicant’s request for a service connected disability rating for prostate cancer. The VA stated that prostate cancer does not qualify for service connection because VA had determined that there is no likely relationship of that condition to the applicant’s actual level of radiation exposure in service. There was no basis in the available evidence of record to establish service connection for the disability. The condition did not happen in military service, nor was it aggravated or caused by service. The VA stated that since prostate cancer was not considered a radiogenic disability, the applicant was asked to produce a doctor’s statement indicating that he developed prostate cancer due to the claimed exposure; however, he had not done so.

The applicant’s wife submits a narrative outlining the applicant’s medical condition, to include prostate cancer, malaria, diabetes, and dental problems.

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 Veterans Administration (now known as the Department of Veterans Affairs). Therefore, any request for compensation for any illness or injury suffered during that period of time must be addressed to that agency.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40 provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

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.

Any medical condition that the applicant incurred during his first term of service is not compensable by Department of the Army, but under the jurisdiction of the VA. Nevertheless, there is no evidence, nor has the applicant provided any, to indicate that his current physical condition was incurred during his military service. His reports of physical examination at the conclusion of his service in 1946 and 1950 show that he was medically qualified for separation from the service. His continued performance of duty up until his discharge in 1946 and 1950 indicates that he was medically fit. Consequently, there is no basis to correct his record to reflect physical disability retirement.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 January 1950, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 24 January 1953.

The application is dated 29 August 2001 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. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

___AAO_ __MHM__ __KAH__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001062153
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020129
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.	142.00
2.	108.00
3.	177
4.
5.
6.