B-175350, JUN 19, 1972

B-175350, JUN 19, 1972

MILITARY PERSONNEL - MEDICAL EXPENSES - PAY AND ALLOWANCES - ENTITLEMENT DECISION AFFIRMING PRIOR DISALLOWANCE OF A CLAIM OF MAJOR EUGENE M. JENNINGS, USAFR, FOR PAY AND ALLOWANCES AND MEDICAL EXPENSES ALLEGEDLY DUE INCIDENT TO A PERIOD OF ACTIVE DUTY. IN VIEW OF THE DETERMINATION BY THE SURGEON GENERAL OF THE AIR FORCE TO THE EFFECT THAT CLAIMANT'S ILLNESS WAS THE RESULT OF A PRE-EXISTING DISORDER AND NOT AGGRAVATED DURING THE ACTIVE DUTY PERIOD, THERE EXISTS NO LEGAL BASIS FOR ALLOWING THE CLAIM.

TO MAJOR EUGENE M. JENNINGS:

FURTHER REFERENCE IS MADE TO YOUR LETTER RECEIVED IN OUR OFFICE JANUARY 26, 1972, IN EFFECT REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION DATED DECEMBER 21, 1970, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FROM JUNE 4, 1962, TO MARCH 1, 1964, AND MEDICAL EXPENSES INCURRED IN 1965.

BY ORDERS DATED MAY 29, 1962, YOU WERE DIRECTED TO PERFORM ACTIVE DUTY FOR TRAINING FOR 5 DAYS BEGINNING ON OR ABOUT MAY 30, 1962. THE RECORD INDICATES THAT YOU PERFORMED SUCH DUTY DURING THE PERIOD MAY 30 TO JUNE 3, 1962, AND THAT DURING THAT PERIOD YOU COMPLAINED OF A THROAT AILMENT FOR WHICH YOU HAVE RECEIVED EXTENSIVE TREATMENT IN GOVERNMENTAL FACILITIES AND THAT YOU ALSO HAVE RECEIVED MEDICAL AND HOSPITAL TREATMENT FOR A THROAT AILMENT FROM OTHER SOURCES.

SECTION 8722 OF TITLE 10, U.S. CODE, PROVIDES FOR MEDICAL AND HOSPITAL CARE IN ADDITION TO PAY AND ALLOWANCES FOR EACH MEMBER OF THE AIR FORCE RESERVE "WHO IS INJURED, OR CONTRACTS A DISEASE, IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE." THE AIR FORCE HAS DETERMINED THAT YOU ARE NOT ENTITLED TO THE BENEFITS OF THAT PROVISION OF LAW BECAUSE YOUR ILLNESS WAS NOT INCURRED WHILE ON ACTIVE DUTY FOR TRAINING.

YOU RECEIVED MEDICAL TREATMENT FOR ENLARGED LYMPH NODES ON JUNE 1, 1962, AND ON JUNE 3, 1962, WHEN YOU COMPLETED YOUR ACTIVE DUTY FOR TRAINING ASSIGNMENT AN ENTRY WAS MADE IN YOUR RECORD THAT YOU SUFFERED SORENESS AND SWELLING OF THE JAWS.

THE RECORD SHOWS FURTHER THAT YOU WERE TREATED ON JUNE 3, 1962, AT THE U.S. NAVAL DISPENSARY, DALLAS, TEXAS. THE VETERANS' ADMINISTRATION HOSPITAL IN HOUSTON, TEXAS, STATES THAT YOU WERE HOSPITALIZED DURING THE PERIODS JUNE 18 TO JULY 3, 1962; JULY 23 TO AUGUST 13, 1962; AND SEPTEMBER 24 TO 28, 1962. ALSO IT APPEARS THAT YOU WERE A PATIENT IN AN AIR FORCE HOSPITAL DURING THE PERIOD APRIL 22 TO JUNE 6, 1963. ON JULY 26, 1962, WHILE STILL UNDER TREATMENT, YOU WERE GIVEN YOUR ANNUAL FLIGHT PHYSICAL AT ELLINGTON AIR FORCE BASE, TEXAS, AND WERE CLEARED FOR PERFORMANCE OF MILITARY DUTY. HOWEVER, IT WAS SAID THAT YOU COULD NOT SPEAK FOR EXTENDED PERIODS AND AS A RESULT YOU HAD TO TERMINATE YOUR CIVILIAN JOB AS AN INSURANCE SALESMAN.

DURING THE PERIOD FROM JULY 29 TO AUGUST 12, 1962, YOU COMPLETED YOUR ANNUAL TRAINING DUTY TOUR. YOU ALSO PERFORMED TWO SHORT PERIODS OF TRAINING DUTY THEREAFTER, FROM OCTOBER 3 THROUGH 7, 1962, AND FROM JANUARY 2 THROUGH 6, 1963. IN ALL INSTANCES STATEMENTS WERE MADE THAT YOU WERE FIT FOR DUTY. FURTHER ACTIVE DUTY TRAINING TOURS COVERED THE PERIODS FROM JULY 21 THROUGH AUGUST 4, 1963, AND FROM AUGUST 25 THROUGH 30, 1963. YOU ALSO PARTICIPATED IN TRAINING ASSEMBLIES DURING THE PERIOD FROM JULY 1, 1962, THROUGH JANUARY 12, 1964. BY ORDERS DATED MARCH 3, 1964, YOU WERE RELIEVED FROM YOUR ASSIGNMENT WITH YOUR SQUADRON AND ASSIGNED TO NONAFFILIATED RESERVE SECTION, AIR RESERVE RECORDS CENTER, DENVER, COLORADO, EFFECTIVE MARCH 1, 1964.

BY LETTER DATED OCTOBER 29, 1962, A LINE OF DUTY REPORT BY AN INVESTIGATION OFFICER OF YOUR THEN DUTY STATION RECOMMENDED THAT A DETERMINATION BE MADE THAT THE DISEASE OR ILLNESS YOU SUFFERED WAS INCURRED IN LINE OF DUTY NOT DUE TO MISCONDUCT. THE REPORT OF THE OFFICE OF THE SURGEON, AIR RESERVE RECORDS CENTER, DENVER, COLORADO, DATED APRIL 24, 1963, STATED THAT YOU WERE INCAPACITATED BY DISEASE FROM JUNE 4 THROUGH 30, 1962, AND WERE ELIGIBLE FOR PAY AND ALLOWANCES FOR THAT PERIOD. IT STATED FURTHER THAT, SUBSEQUENT TO JUNE 30, 1962, THE HOSPITALIZATION AT THE VETERANS' ADMINISTRATION HOSPITAL AND THE CARE YOU RECEIVED WERE FOR A CONDITION NOT ASSOCIATED WITH THE DISEASE INCURRED DURING YOUR DUTY TOUR FROM MAY 30 TO JUNE 3, 1962.

A FURTHER REPORT FROM THE OFFICE OF THE SURGEON GENERAL, HEADQUARTERS, UNITED STATES AIR FORCE, DATED JULY 9, 1963, STATED AS FOLLOWS:

"IT IS THE PROFESSIONAL OPINION OF THE OFFICE OF THE SURGEON GENERAL, USAF, THAT MAJOR JENNINGS DID NOT DEVELOP CARCINOMA OF THE VOCAL CORDS DURING HIS FIVE-DAY PERIOD OF ACTIVE DUTY (30 MAY-3 JUNE, 1962)."

SUBSEQUENTLY, A REPORT FROM HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, DATED JULY 11, 1963, CITING 10 U.S.C. 8722, STATED THAT BECAUSE OF THE SURGEON GENERAL'S REPORT DATED JULY 9, 1963, THERE WAS NO ENTITLEMENT TO PAY AND ALLOWANCES DURING PERIODS OF HOSPITALIZATION AND REHOSPITALIZATION FROM JUNE 4 THROUGH DECEMBER 3, 1962. HOWEVER, THE RECORD SHOWS THAT ON MARCH 24, 1964, YOU WERE PAID A SUPPLEMENTAL (HOSPITALIZATION) PAYMENT FOR THE PERIOD FROM JUNE 4 THROUGH 30, 1962.

ON AUGUST 19, 1967, YOU FILED A CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD FROM JUNE 4, 1962, THROUGH JANUARY 14, 1964, AND FOR HOSPITAL AND DOCTOR'S BILLS PAID BY YOU IN 1965. YOU SAID YOU WERE PAID FOR THE PERIOD FROM JUNE 4 THROUGH 30, 1962, AND WERE ALLOWED TO PERFORM SEVERAL TOURS OF ACTIVE DUTY FOR WHICH PERIODS YOU WERE NOT CLAIMING.

YOU SAID THAT ON MAY 31, 1962, WHILE ON ACTIVE TRAINING DUTY AT ROOSEVELT ROADS NAVAL AIR STATION, PUERTO RICO, YOU STARTED RUNNING A FEVER AND HAD SORE AND SWOLLEN JAWS. THIS YOU ATTRIBUTED TO THE MANY MOSQUITOS WHICH YOU SAID "NEARLY ATE ME UP." YOU THEN UNDERWENT SEVERAL DIAGNOSES, TREATMENTS AT THE DISPENSARY AT YOUR TRAINING STATION, AT THE NAVAL AIR STATION IN DALLAS, THE VETERANS' ADMINISTRATION HOSPITAL IN HOUSTON, TEXAS, AND THE WILFORD HALL AIR FORCE HOSPITAL, LACKLAND AIR FORCE BASE, TEXAS. YOU ALSO UNDERWENT TWO OPERATIONS AT THE VETERANS' HOSPITAL.

YOU SAID FURTHER THAT YOU WERE CLEARED FOR FLYING AT A FLIGHT PHYSICAL AND WERE PAID FOR A TWO-WEEK TOUR. YOU CONTENDED THAT, WHILE ALL THE MEDICAL EXPENSES WHICH YOU INCURRED WERE ASSUMED BY THE AIR FORCE, YOU DID NOT RECEIVE PAY AND ALLOWANCES FOR THAT PERIOD, ALTHOUGH YOU WERE ADVISED BY A MEDICAL BOARD SHORTLY AFTER MAY 30, 1963, THAT YOU SHOULD BE DISCHARGED AND PAID TO JUNE 6, 1963.

YOU INDICATED IN YOUR CLAIM THAT UNTIL JANUARY 15, 1964, YOU WERE UNABLE TO PURSUE YOUR CIVILIAN OCCUPATION AS A LIFE INSURANCE MANAGER. AT THAT TIME, YOU WERE ABLE TO OBTAIN A CIVILIAN POSITION. HOWEVER, YOUR ILLNESS CONTINUED AND YOU WENT FOR TESTS AT THE VALLEY PRESBYTERIAN HOSPITAL, ENCINO, CALIFORNIA, ON APRIL 25, 1965. YOU ATTACHED STATEMENTS AND COPIES OF CANCELLED CHECKS SHOWING THAT IN 1965 YOU HAD BEEN RECEIVING TREATMENT AT THAT HOSPITAL AND WERE CONSULTING WITH SEVERAL CIVILIAN DOCTORS PERTAINING TO YOUR ILLNESS.

BY LETTER DATED SEPTEMBER 26, 1967, HEADQUARTERS, AIR RESERVE PERSONNEL CENTER DENIED YOUR CLAIM FOR THE REASON THAT IT HAD BEEN DETERMINED THAT ENTITLEMENT DID NOT EXIST SINCE YOUR ILLNESS EXISTED PRIOR TO YOUR ACTIVE DUTY TRAINING TOUR.

IN A LETTER DATED APRIL 13, 1970, YOU RESUBMITTED YOUR CLAIM, CONTENDING THAT THE DIAGNOSIS OF CARCINOMA BY THE SURGEON GENERAL WAS IN ERROR. YOU CONTENDED THAT AFTER YOUR ACTIVE DUTY TOUR (MAY 30-JUNE 3, 1962), ANY NORMAL ACTIVITY CAUSED YOUR THROAT TO GET SO DRY YOU COULD HARDLY SWALLOW. YOU SAY FURTHER THAT THE CAUSE OF THIS THROAT PROBLEM HAD NEVER BEEN DETERMINED AND CORRECTED. YOU THEREFORE REQUESTED THAT YOUR CLAIM BE REACTIVATED AND PROCESSED FOR PAYMENT. YOU ENCLOSED A COPY OF A LETTER FROM THE OFFICE OF THE SURGEON GENERAL DATED APRIL 2, 1970, WHICH STATED THAT ITS OPINION IN ITS LETTER OF JULY 9, 1963, THAT YOU DID NOT DEVELOP CARCINOMA OF THE VOCAL CORDS DURING YOUR FIVE-DAY PERIOD OF ACTIVE DUTY WAS IN FACTUAL AGREEMENT WITH YOUR STATEMENT THAT YOU HAD PROOF THAT YOU NEVER DID HAVE CANCER OF THE THROAT.

A SUBSEQUENT LETTER FROM THAT OFFICE, DATED AUGUST 6, 1970, EXPLAINED THAT THE RECORD DID NOT IDENTIFY ANY INFECTING ORGANISM WHICH CAUSED THE ILLNESS YOU INCURRED. FURTHER, THAT YOU HAD BEEN TREATED WITHIN 48 HOURS FROM THE BEGINNING OF THE TRAINING PERIOD AND IT KNEW OF FEW INFECTING ORGANISMS WHICH HAD AN INCUBATING PERIOD OF LESS THAN 48 HOURS. THE LETTER STATED FURTHER:

"IT IS EXTREMELY DIFFICULT TO RECONSTRUCT THE DISORDER SO AS TO ARRIVE AT A DEFINITIVE DIAGNOSIS. HOWEVER, THERE IS MUCH EVIDENCE TO SUPPORT THE PROBABILITY THAT THE CLAIMANT WAS INFECTED PRIOR TO THE TIME THAT HE REPORTED FOR DUTY AND INDEED WAS IN THE PRODROMAL STAGE OF HIS ILLNESS ON 30 AND 31 MAY 1962."

THE LETTER STATED FURTHER THAT WITH THAT ASSUMPTION, YOU RECEIVED FAR MORE TREATMENT AND CARE THAN THAT TO WHICH YOU WERE ENTITLED UNDER THE PROVISIONS OF PARAGRAPH 50157A(4), AIR FORCE MANUAL 177-105. FINALLY, IT STATED THAT, UNDER THE CIRCUMSTANCES, AGGRAVATION OF A PRE-EXISTING DISORDER CANNOT BE SUBSTANTIATED INSOFAR AS THE CLAIMANT WAS NOT KNOWLEDGEABLE OF ANY ILLNESS UNTIL HE REPORTED FOR DUTY.

BY LETTER DATED AUGUST 20, 1970, YOUR CLAIM AND SUPPORTING PAPERS WERE TRANSMITTED TO OUR CLAIMS DIVISION FOR SETTLEMENT. BY SETTLEMENT DATED DECEMBER 21, 1970, YOUR CLAIM WAS DISALLOWED ESSENTIALLY FOR THE REASON THAT IT WAS NOT ESTABLISHED THAT YOU INCURRED THE AILMENT INVOLVED WHILE ON ACTIVE DUTY FOR TRAINING.

IN YOUR PRESENT LETTER YOU REITERATE YOUR CONTENTIONS THAT YOUR ILLNESS WAS CAUSED BY AN INCIDENT WHICH OCCURRED WHILE YOU WERE ON ACTIVE DUTY. YOU SAY THAT THE RECORDS ARE CLEAR THAT THE AIR FORCE HAS ADMITTED ENTITLEMENT DID EXIST FOR THE PERIOD FROM JUNE 4 THROUGH 30, 1962; THAT THE CONTINUING PERIODS OF HOSPITALIZATION AND DISABILITY WERE A DIRECT RESULT OF THE ILLNESS WHICH BEGAN BETWEEN MAY 30 AND JUNE 3, 1963; THAT THERE WAS CONFUSION AS TO HOW TO HANDLE YOUR CASE, AND THAT DETERMINATIONS WERE MADE WHICH WERE INCORRECT AND CAUSED UNTOLD DAMAGE TO YOUR CIVILIAN OCCUPATION. IN THIS CONNECTION, YOU FURNISHED MEDICAL STATEMENTS WHICH YOU SAY REFUTE THE FINDINGS OF THE SURGEON GENERAL THAT YOU HAD CARCINOMA OR THAT THE GROWTH REMOVED FROM YOUR VOCAL CORDS WAS CANCEROUS, BUT THE SURGEON GENERAL WOULD NOT ADMIT AN ERROR IN THE AIR FORCE MEDICAL DIAGNOSIS. YOU THEREFORE BELIEVE THAT YOU SHOULD HAVE BEEN RETAINED ON ACTIVE DUTY UNTIL YOUR ILLNESS WAS CURED.

UNDER THE PROVISIONS OF SECTION 8722(A) AND (B), TITLE 10, U.S.C. AND PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, EACH RESERVE OF THE AIR FORCE WHO IS INJURED OR CONTRACTS A DISEASE IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE, IS ENTITLED TO HOSPITALIZATION, REHOSPITALIZATION, MEDICAL AND SURGICAL CARE IN A HOSPITAL AND AT HIS HOME APPROPRIATE FOR THE TREATMENT OF HIS INJURY OR DISEASE UNTIL THE RESULTING DISABILITY CANNOT BE MATERIALLY IMPROVED BY FURTHER HOSPITALIZATION. ALSO, THE RESERVE MEMBER IS ENTITLED TO THE BASIC PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE TIME THE DISEASE WAS CONTRACTED, DURING PERIODS OF HOSPITALIZATION AND REHOSPITALIZATION, BUT NOT MORE THAN A TOTAL OF SIX MONTHS AFTER THE END OF THE PRESCRIBED TOUR OF DUTY OR TRAINING. THE MEMBER WOULD ALSO BE ENTITLED TO SUBSISTENCE WHILE IN THE HOSPITAL IF NOT OTHERWISE ENTITLED AND TO THE NECESSARY TRANSPORTATION TO AND FROM PLACE OR PLACES OF HOSPITALIZATION.

SECTION 8723 PROVIDES THAT THE SECRETARY MAY ORDER THE HOSPITALIZATION, MEDICAL AND SURGICAL TREATMENT, AND DOMICILIARY CARE FOR AS LONG AS NECESSARY, OF ANY MEMBER OF THE AIR FORCE ON ACTIVE DUTY, AND MAY INCUR OBLIGATIONS WITH RESPECT THERETO, WHETHER OR NOT THE MEMBER WAS INJURED OR CONTRACTED A DISEASE, IN LINE OF DUTY, EXCEPT IN THE CASE OF A MEMBER TREATED IN A PRIVATE HOSPITAL, OR BY A CIVILIAN PHYSICIAN WHILE ON LEAVE OF ABSENCE FOR MORE THAN 24 HOURS.

AIR FORCE REGULATION 35-67, DATED JANUARY 19, 1961, IMPLEMENTING SECTION 8722 OF TITLE 10, U.S.C; PROVIDED THAT A LINE OF DUTY DETERMINATION IS REQUIRED WHEN A MEMBER HAS ANY INJURY OR DISEASE WHICH IS TREATED BY A DOCTOR, WHETHER OR NOT THE PATIENT IS HOSPITALIZED AND WHICH RESULTS IN AN INABILITY TO PERFORM HIS DUTIES FOR MORE THAN ONE DAY, AS DETERMINED BY COMPETENT AUTHORITY. IT PROVIDES FURTHER THAT DISEASES OR INJURY WHICH EXISTED PRIOR TO SERVICE AND WERE NOT AGGRAVATED BY SERVICE MUST BE FOUND TO BE "NOT IN LINE OF DUTY, EPTS" (EXISTING PRIOR TO SERVICE). THE MEDICAL OFFICER MUST BE THE PERSON TO DETERMINE WHETHER A DISEASE OR INJURY DID EXIST PRIOR TO SERVICE AND WHETHER OR NOT SERVICE DID AGGRAVATE THE CONDITIONS.

PARAGRAPH 2, AIR FORCE REGULATION 160-53, DECEMBER 22, 1961, PROVIDES THAT CIVILIAN ATTENDANCE FOR AIR FORCE MILITARY PERSONNEL AT PUBLIC EXPENSE IS AUTHORIZED ONLY WHEN THE REQUIRED TREATMENT CANNOT BE OBTAINED FROM AVAILABLE FACILITIES OF THE AIR FORCE OR OTHER GOVERNMENT AGENCIES, SUCH AS ARMY, NAVY, VETERANS' ADMINISTRATION AND U.S. PUBLIC HEALTH SERVICE. PARAGRAPH 5 PROVIDES THAT AUTHORITY TO APPROVE CIVILIAN MEDICAL ATTENDANCE IS THE RESPONSIBILITY OF THE AIR FORCE BASE COMMANDER, OR HIS AUTHORIZED REPRESENTATIVE.

WITH RESPECT TO YOUR ENTITLEMENT TO PAY AND ALLOWANCES UNDER 10 U.S.C. 8722, FOR THE PERIOD CLAIMED, THE PRIMARY FACTOR FOR DETERMINATION APPEARS TO BE WHETHER THE ILLNESS WHICH YOU EXPERIENCED DURING THE PERIOD FROM MAY 30 TO JUNE 3, 1963, WAS A DISEASE CONTRACTED IN THE LINE OF DUTY WHILE YOU WERE ON ACTIVE DUTY. THE RECORD SHOWS THAT WHILE A LINE OF DUTY RECOMMENDATION WAS ORIGINALLY MADE AND APPARENTLY APPROVED BY COMPETENT AUTHORITY, PAYMENT OF PAY AND ALLOWANCES WAS AUTHORIZED ONLY FOR THE PERIOD FROM JUNE 4 THROUGH 30, 1962, DURING WHICH PERIOD YOU WERE UNDER TREATMENT IN THE MILITARY AND VETERANS' ADMINISTRATION HOSPITALS. HOWEVER, THE REPORT DATED JULY 9, 1963, FROM THE OFFICE OF THE SURGEON GENERAL REJECTED THE LINE OF DUTY DETERMINATION, IN STATING THAT YOU DID NOT DEVELOP THE DISEASE IT IS BELIEVED YOU HAD DURING THE FIVE-DAY PERIOD OF ACTIVE DUTY. WHILE THE RECORD CONTAINS SOME MEDICAL OPINION WHICH YOU SAY DISPUTES THE DIAGNOSIS BY THE SURGEON GENERAL'S OFFICE, THAT OFFICE CONTINUED TO MAINTAIN ITS MEDICAL OPINION THAT, WHATEVER IT WAS THAT CAUSED YOUR ILLNESS, IT WAS A PRE-EXISTING DISORDER WHICH WAS IN THE PRODROMAL STAGE ON MAY 30 AND 31, 1962. IT HELD FURTHER THAT THE AGGRAVATION OF SUCH DISORDER COULD NOT BE SUBSTANTIATED INSOFAR AS YOU WERE NOT AWARE OF AN ILLNESS PRIOR TO REPORTING FOR DUTY.

WE MUST RELY ON THE DETERMINATIONS OF OFFICE OF THE SURGEON GENERAL OF THE AIR FORCE IN OUR DETERMINATION AS TO WHETHER YOUR ILLNESS OR DISEASE WAS CONTRACTED IN LINE OF DUTY WHILE ON ACTIVE DUTY OR WAS AGGRAVATED BY SUCH DUTY TO MAKE YOU ELIGIBLE FOR PAY AND ALLOWANCES DURING THE PERIOD CLAIMED. SEE B-155753, DATED JANUARY 28, 1965, COPY ENCLOSED. IN VIEW OF THE REPORTS BY THE OFFICE OF THE SURGEON GENERAL WHICH DETERMINED THAT YOUR ILLNESS WAS CAUSED BY A PRE-EXISTING DISORDER, AND THAT THE AGGRAVATION OF SUCH DISORDER COULD NOT BE SUBSTANTIATED, WE FIND NO LEGAL BASIS UPON WHICH THE PAYMENT OF PAY AND ALLOWANCES MAY BE ALLOWED FOR THE PERIOD FROM JULY 1, 1962, THROUGH JANUARY 14, 1964.

FOR THE SAME REASON YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED WHILE YOU WERE TREATED IN A PRIVATE HOSPITAL AND BY CIVILIAN PHYSICIANS IN 1965 MUST BE DENIED.