IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080011199 


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, a medical discharge. 

2.  The applicant states, in effect, that he wants a medical discharge due to (1) a comatose condition that he experienced in the hospital, and (2) radiation exposure.  He contends that he was hospitalized in a comatose condition and rather than being medically discharged, he was discharged 9 days later for inadaptability.  In spite of his 9 years of impeccable service, he was done this way (sic).  He also contends that he participated in work which exposed him to radiation, and he was notified that he was due a settlement but he never received it. 

3.  The applicant provides copies of his medical treatment records.

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 had a prior period of honorable service from 10 November 1942 through 3 December 1945.  He served in the Regular Army from 20 November 1951 through 12 July 1955.  

3.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) shows that he was discharged under the provisions of Army Regulation 635-209, by reason of unsuitability, with a general, under honorable conditions discharge.  The unit commander indicated that he had been assigned to various duties within the command and his performance in such duty assignments had been conducted under the supervision of various commanders. Each commander found the applicant inefficient in his assignments and there was no other assignment to which he could be assigned in the command.  The applicant required constant supervision, instruction and corrective action.  However, he had no record of court-martial, nonjudicial punishment, or lost time.  
4.  The applicant went before an administrative separation board on 22 June 1955.  The board determined that the applicant did not possess the required degree of adaptability for military service after reasonable attempts had been made to reclassify and reassign him and recommended that he be discharged for inaptness with a general, under honorable conditions discharge.

5.  The applicant's service medical records (SMRs) were not available for review. However, an early Department of Veterans Affairs (DVA) Rating Decision (May 1962) provided by the applicant shows that his SMRs were available for their decision.  The decision indicates that many of the applicant's complaints in 1943 during his military service were functional in nature and consistent with his continued inclination of excessive concern (with bowel activity and constipation). He went on to serve on active duty for many years after 1943 and he qualified for reenlistment in 1948.  There were numerous occasions of treatment for other conditions which afforded the applicant opportunities for complaint and disclosure of any significant mental disorder.  He was hospitalized on various occasions and sought medical attention on numerous other occasions for nonrelated conditions. A SMR in February 1954 showed complaints of shortness of breath and dizziness and pain in the back.  The medical impression was "anxiety reaction."  He was also hospitalized for a lumbosacral strain.  In April 1955, the applicant was referred for psychiatric evaluation in conjunction with a recommendation for administrative discharge and ruled out the existence of any significant mental disease.  The earliest clinical record suggestive of an acquired psychiatric problem was in July 1959 and the first diagnosis was in 1960, approximately
5 years after service ended.    
6.  The applicant's first recorded treatment for a mental condition was from 
19-20 September 1960 at the Los Angeles County General Hospital for a nervous disability.  Sometime in 1962 the applicant was diagnosed with a schizophrenic reaction, paranoid type.

7.  The applicant was hospitalized in a DVA hospital in January 1962.  While hospitalized he had various somatic delusions claiming that he suffered from radiation poisoning and that electricity was tingling through his body and that there was electricity in his jacket.  There is no evidence that the applicant had an assignment while in the Army associated with exposure to radiation.

8.  Apparently the applicant made several requests to the U.S. Army Ionizing Radiation Dosimetry Center.  He contended that he was handling atomic test materiel in Alaska and at Camp Stoneman in California.  He also contended that he fell violently sick.  He was informed that research of their film badge files failed to reveal any record of external exposure to ionizing radiation on the applicant.  He was also advised by the Personnel Services Division, U.S. Army Personnel Center, St. Louis, that there is no record of his exposure to ionizing radiation and that his records were presumed destroyed in the 1973 fire which destroyed many records of former members of the Army at the National Archives Record Administration.  

9.  On 21 June 1992, the applicant received a letter from the DVA, Chicago, advising him that he may be eligible to have a claim to benefits due to alleged exposure to ionizing radiation either from the atomic bombing of Hiroshima and Nagasaki, or from any atmospheric nuclear tests conducted by the U.S. readjudicated.  

10.  Army Regulation 635-209 (Personnel Separations-Unsuitability), then in effect, provided the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unsuitable for further military service.  This regulation provided that members with psychiatric conditions that did not warrant discharge for disability would be subject to separation for unsuitability.  Paragraph 3b, in relevant part, provided that members with character and behavior disorders be subject to separation for unsuitability.  An honorable discharge or a GD could be given as warranted by the individual’s military record.  

11.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC) , Chapter 61, (10 USC 61) and Department of Defense Directive (DODD) 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time of his separation.  There is no evidence of arbitrary or capricious actions by the command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant had an opportunity to present evidence in his own behalf at an administrative separation board and there is no evidence that he was experiencing a comatose condition during the processing of his discharge.

2.  There is no evidence that his military service was interrupted by a physical disability or he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.  There is no medical evidence to show the applicant was referred to the physical disability system or found unfit for duty.  There is a presumption of fitness.  When a Soldier continues to perform military duties up to his discharge, that Soldier is presumed to have been physically fit.  The presumption is rebuttable by evidence that shows:  An acute, grave illness or injury occurred which prevented the Soldier from performing further duty; a serious deterioration of a previously diagnosed condition, to include a chronic condition, which would preclude further service (if the Soldier were not separating/retiring); and/or a chronic condition for which the Soldier was referred, and a preponderance of evidence establishes that the Soldier was not performing duties befitting his or her experience, grade, rank, or rating.  The applicant has not provided evidence sufficient to overcome the presumption of fitness.

3.  There is no evidence to show the applicant was exposed to ionizing radiation or that he was assigned to any duties requiring handling of radiation materiel.

4.  Given the above, there is no evidence to support the applicant's contentions. 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 did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis upon which to grant his request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      ___        XXX                ___
                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.



ABCMR Record of Proceedings (cont)                                         AR20080011199





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ABCMR Record of Proceedings (cont)                                         AR20080011199



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