DOCKET NUMBER:  AR20080019788 


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 he be issued a Certificate of Disability for Discharge.

2.  The applicant states, in effect:

	a.  He was assigned to the 359th Quartermaster Service Company, Yermo, CA.  His unit was reassigned to Fort Lawton, WA to replace the Black unit that was jailed for “killing a POW.”

	b.  His company commander refused to give him a medical discharge because of his race (Black).  The company commander stated “he did not want the Army to have to pay a colored [Black] person for the rest of his life.”  The company first sergeant had originally given him a medical discharge, but the company commander overturned it.

	c.  As soon as he was discharged, he filed a complaint with the Disabled American Veterans (DAV).  He also began his attempts to obtain a Certificate of Disability for Discharge (CDD).

   d.  He does not read or write; however, he has been filing claims since 1946.  He did not learn of the Army Board for Correction of Military Records (ABCMR) until 2008.

3.  The applicant provides numerous documents related to his military service and medical problems. 

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 were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The WD AGO Form 100 (Separation Qualification Record) provided by the applicant shows he entered active service on 17 December 1942 and was honorably discharged on 10 February 1946.  He served primarily as a light truck driver.  From 1944-1946, he drove an ambulance transporting patients from a hospital train to the hospital, or from one hospital to another.  He also drove a jeep while on guard duty.

4.  The available evidence shows the applicant experienced abdominal pain for approximately 2 weeks in November 1944.  On 12 November 1944, he experienced nausea and vomiting and was admitted to the Unit #2 Station Hospital, Fort Lawton.  He was diagnosed with appendicitis.  Using a McBurney incision, an appendectomy was performed under spinal anesthesia of 150 mgs of procaine.  The Operation Report noted the anesthesia was not satisfactory and the surgeon had difficulty locating the appendix because it had adhered to the rectum.  It was freed up with difficulty and removed intact [emphasis added].  The Pathological Report provided a diagnosis of “appendicitis, acute, suppurative.” The applicant’s recovery was normal and he was discharged to duty on             27 November 1944.

5.  On 9 February 1946, the applicant was given a physical examination prior to his discharge.  His appendectomy was noted, but his separation physical was otherwise unremarkable and he was separated in good health.
6.  Following his discharge, on 1 April 1946, 7 April 1947, and on 16 September 1948, the applicant attempted to obtain disability compensation based upon a “ruptured appendix.”  He was denied.

7.  In November 1957, the applicant was seen at a Veterans Administration (VA) hospital where he was diagnosed with a duodenal ulcer.

8.  In the 1970’s, the applicant, in addition to his duodenal ulcer, was diagnosed with spastic colitis, diverticulosis, degenerative disc disease, arthritis of the lumbar spine, and arteriosclerotic heart disease with angina pectoris.  The VA rated him as 0 percent disabled for his appendectomy scar, 60 percent for his heart disease, and 20 percent for his ulcer.  He was given a combined rating of 70 percent.

9.  In June 2006, the VA Greater Los Angeles Healthcare System certified the applicant suffered from severe discogenic disease of the lumbar spine which the applicant attributed to military service.

10.  Army Regulation 615-361 (Enlisted Men – Discharge – Medical), in effect at the time, discussed Certificates of Disability for Discharge (CDD).  The regulation stated determination of eligibility for discharge for physical disability was the responsibility of medical authorities.  When an enlisted patient at a station hospital was determined by medical authorities to be a candidate for a disability discharge, he would be transferred from his unit of assignment to the station hospital’s detachment of patients.  The enlisted patient would then undergo evaluation by a board of medical officers in order to determine whether or not to award a CDD.  As disability occurring in the service was usually made the basis of a claim for pension, the regulation cautioned special care would always be taken to set forth fully in the CDD the origin of the disability and to describe particularly the injury or disease and the disability arising there from.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is seeking a CDD.  He contends he served at Fort Lawton, which is the reason he was denied a CDD.

2.  Historically, Fort Lawton, in August 1944, was the scene of an incident where a White Italian Prisoner of War (POW) punched a Black Soldier, knocking him out.  The Black Soldiers rioted, during which an Italian POW was lynched.  After order was restored, 43 Black Soldiers were tried by court-martial.  The court found 28 guilty of rioting, and 2 guilty of manslaughter.  Sentences ranged from 
6 months to 25 years at hard labor, with 27 Black Soldiers issued dishonorable discharges.  The ABCMR, on 26 October 2007, set aside the convictions [of those Soldiers who applied to the ABCMR] because the Black Soldiers were denied due process by the legal standards in place at the time.

3.  During World War II, Army Regulation 615-361 provided the guidance for the process involved in the issuance of CDDs.  Unit commanders and first sergeants were not involved in the decision process beyond sending a Soldier to the hospital whenever illness or injury presented.  The CDD process began at the hospital and was the responsibility of medical authorities.  If a sick or injured Soldier was seen as a candidate for a CDD, a board of medical officers was convened to review the case and make a proper determination.

4.  The service medical records provided by the applicant indicate he developed a case of appendicitis during his military service.  He was admitted to the hospital and an appendectomy was successfully performed.  The appendectomy resulted in the removal of an acute diffuse suppurative appendix.  The appendix was removed with difficulty; it did not rupture, and the applicant did not experience peritonitis.  He made a complete recovery and was discharged with a clean bill of health.

5.  There is no record the applicant was ever considered for referral to a board of medical officers for a possible CDD.  The medical documents which he provided do not show any degree of disability from his appendicitis.  On the contrary, the applicant continued to successfully serve as a driver for 2 more years after his November 1944 appendectomy.

6.  The applicant’s argument is not supported by the evidence.  The available evidence show the applicant developed severe abdominal pain, nausea and vomiting, and his commander had the applicant admitted to the hospital.  Further, the commander, by regulation, was not a decision-maker in the CDD process, once he referred the applicant to the hospital, medical authorities were the sole deciders of the CDD issue.

7.  The applicant provided medical documents which detailed illnesses occurring well after his military service and for which the VA established disability ratings and provided compensation.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of 
that agency.  It does not, in itself, establish physical unfitness for Army purposes.  Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability.  


Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

8.  Additionally, the VA acknowledged the applicant’s appendicitis while in the military, but gave it a zero percent rating.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  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.




      _______ _   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.

ABCMR Record of Proceedings (cont)                                         AR20080019788



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ABCMR Record of Proceedings (cont)                                         AR20080019788



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