RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 JANUARY 2005
      DOCKET NUMBER:  AR20050003517


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Randolph Fleming              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that information concerning an allegation that
he approached two other men be stricken from his records.  The applicant
also requests, in effect, that his record be corrected to show he was
retired by reason of disability and entitled to disability compensation
from the Army.

2.  The applicant states, in effect, that he was accused of approaching two
other Soldiers, when in fact, he was the one being approached.  He states
the lie has been part of his records and has created havoc in his life.  He
states that he would like to have his record cleared before he dies.

3.  The applicant also states, in effect, that he was asked, when he got
out of the Army following World War II, if he wanted to file for a pension,
because he was eligible.  He states he did not ask any questions, but
declined because he was afraid he would be retained in the Army longer and
he just wanted to go home.  He states the next time he was in the Army he
was forced to sign documents discharging him but was told not to worry
because he would be getting a pension.

4.  The applicant provides several lengthy personal statements, a copy of a
1978 statement from a fellow Soldier who indicated the applicant had
changed after they returned from combat, and various medical documents
initiated while he was seeking treatment from the Department of Veterans
Affairs.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred in 1946 and again in 1948, when he was honorably discharged
from the Army.  The application submitted in this case is dated 1 March
2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.


3.  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
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  According to the applicant's 1946 separation document, he was
originally inducted in January 1944 and entered active duty in February
1944.  He served overseas in the European Theater of Operations between
December 1944 and August 1945.  He received no personal decorations, beyond
an Army Good Conduct Medal, but was credited with participating in three
designated campaign periods which were confirmed by his entitlement to
three bronze service stars on his European-African-Middle Eastern Service
Medal.

5.  The applicant was honorably discharged, as a result of demobilization
in April 1946.

6.  The applicant's 1948 separation document indicated that on 13 February
1948 he enlisted to return to active duty with the Army.  A board of
medical officers convened, on 15 March 1948, concluded the applicant's
valvular heart disease and mitral regurgitation rendered him unfit for
military service.  The conditions were determined to have existed prior to
the applicant's enlistment and were not aggravated by his military service.
 He was honorably discharged with a certificate of disability for discharge
on 19 March 1948.

7.  There were no other service personnel records or service medical
records available to the Board beyond his two separation documents and the
certificate of disability for discharge.

8.  One medical document, apparently initiated by a Veterans Affairs clinic
in 1947, between the applicant's two periods of Army service, indicates the
applicant was hospitalized for 4 months at a Naval Hospital in Georgia
because he had trouble adjusting to civilian life.  The applicant disputed
the information on that form in a handwritten notation and also raised the
issue of the lies about his character.  He noted that he was now 80 years
old and that he was never told why he was hospitalized "until this month."

9.  A 2005 statement from a psychiatrist in Fort Myers, Florida noted he
had been treating the applicant for anxiety and depression related to his
(the applicant's) fixed belief that the military branded him as a
homosexual based on another man's complaint when the truth, according to
the applicant, was that the other man approached him and then reported the
opposite.  The physician states that he believes there is little doubt that
the applicant had a significant psychiatric disability related to his
military service and is deserving of any considerations that follows from
that designation.

10.  Prior to 1 October 1949, on which date the Career Compensation Act of
1949 became effective, there were no provisions of law whereby an enlisted
person with less than 20 years of military service could be retired from
the Army by reason of physical disability.  Under then existing law,
compensation and pension for service-connected disabilities, or pre-
existing disabilities that had been aggravated by active service, were
under the sole jurisdiction of the Department of Veterans Affairs and not
the Army.

DISCUSSION AND CONCLUSIONS:

1.  There are no documents in files available to the Board concerning the
applicant's allegation that his file contains derogatory information
concerning an incident of solicitation.  As such, there is no corrective
action the Board can take concerning that issue.

2.  There is no indication the applicant was unfit for military service at
the time of his discharge in 1946 and although he was discharged with a
certificate of disability for discharge in 1948 the basis for that
discharge was a medical condition which was determined to have existed
prior to his entry on active duty.

3.  However, notwithstanding any medical claims the applicant may have
regarding his belief that he should have been entitled to disability
compensation from the Army, the fact remains that prior to 1949 there were
no provisions in law to award Army disability compensation to enlisted
Soldiers.  Compensation for service connected disability fell solely under
the jurisdiction of the Department of Veterans Affairs.  Unfortunately,
there are no extant service medical records available to the Board which
could be used to either support or deny his claim for service connection
for any disabilities he may be seeking compensation for from the Department
of Veterans Affairs.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.




5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration in 1946 when he was initially discharged
from the Army or in 1948 when he was discharged a second time.  The ABCMR
was not established until 2 January 1947.  As a result, the time for the
applicant to file a request for correction of any error or injustice
expired on 1 January 1950.  However, the applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
the failure to timely file.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WP___  __TR____  __RF ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____ William Powers_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003517                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|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.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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