RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR20040000418


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 his line of duty (LOD) determination be
changed from Not in Line of Duty – Not Due to Own Misconduct to In Line of
Duty – Not Due to Own Misconduct.

2.  The applicant states that he received no medical board rating and no
severance pay when he separated.  He was on active duty when he was shot.
His medical condition has gotten worse and he is trying to get disability
because he can no longer work.

3.  In a letter to President Bush, the applicant states that he was getting
his food from H___'s Grocery Store.  He was headed to guard an empty motor
pool with one broken down truck in it.  He stayed behind when his unit went
to Fort Irwin, CA because he had less than 120 days left.  He was shot in
the spine and received a Not in Line of Duty determination.  He left Fort
Gordon, GA on crutches.  He does not think he was treated fairly.

4.  The applicant provides two DD Forms 214 (Certificate of Release or
Discharge from Active Duty); discharge orders dated 5 May 1986; a DA Form
1577 (Authorization for Issuance of Awards); pages 2 – 7 of a Medical
Evaluation Board (MEB) Narrative Summary; a DD Form 261 (Report of
Investigation Line of Duty and Misconduct Status) with endorsements and
enclosures (a DA Form 2173 (Statement of Medical Examination and Duty
Status), two DA Forms 2823 (Sworn Statement), and a record of telephone
conversation with a confirmation of that telephone conversation); a letter
dated 8 August 2002 from the Social Security Administration; and a letter
dated 6 April 2004 to President Bush.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 May 1986.  The application submitted in this case is dated 3
April 2003.

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 limitation 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.  After having had prior service, the applicant enlisted in the Regular
Army on    1 October 1981.  He was assigned to Germany on or about 9
January 1982.  He was absent without leave (AWOL) from 27 February through
13 March 1983.  He was reassigned to Fort Benning, GA on or about 20
January 1984.  He was AWOL from 12 through 13 March 1985.

4.  On 13 May 1985 (a Monday), the applicant was shot by his wife.  The DA
Form 3975 (Military Police Report) indicated that, when he was transported
to the Cardiac Trauma Room, all his clothing was removed.  His clothing was
later released to the military police, who searched it and found a
partially burnt hand rolled cigarette containing suspected (later
confirmed) marijuana in his lower left shirt pocket.  Because the applicant
had been conscious during the search, the search was not lawful and no
charges for possession of marijuana were made.

5.  The LOD investigating officer (IO) obtained a sworn statement from
First Sergeant B___ of Company B, 1st Battalion, 58th Infantry, who stated
that the applicant made the 6:00 a.m. accountability formation but shortly
thereafter absented himself from the battalion area and remained absent for
the remainder of the duty day.  Staff Sergeant R___ of Company C reported
the applicant absent about 10:00 a.m.  A sworn statement was also obtained
from Staff Sergeant R___, the acting commander of Company C, 1st Battalion,
58th Infantry.  Staff Sergeant R___ stated that the applicant failed to
make the 8:30 a.m. accountability formation and remained absent for the
rest of the day, being absent from preguard mount and guard mount at 4:00
p. m. the same day.

6.  The applicant informed the IO that he was given a pass on the day he
was shot.

7.  The IO completed the investigation on 20 June 1985.  He noted that an
effort was made to obtain a copy of the Guard Duty Training Roster but he
was informed the roster was discarded.  The IO determined that the
applicant was absent from his appointed place of duty (guard duty) but
misconduct was not the proximate cause of his injury and made findings of
Not in Line of Duty – Not Due to Own Misconduct.  The findings were
approved on 1 October 1985.

8.  The MEB Narrative Summary noted in the Military History section that
the applicant was pending a chapter 13 discharge (unsatisfactory
performance) at the time of his accident.

9.  The applicant departed AWOL again from 6 through 14 February 1986 and
from 24 February through 4 March 1986.

10.  On 8 May 1986, the applicant was honorably discharged due to a
disability not in the line of duty.
11.  Army Regulation 600-10 (The Army Casualty System) in effect at the
time, paragraph 5-18b(1)(b) stated that the presumption favoring in LOD may
be overcome only by substantial evidence that the injury or disease or
condition causing the injury or disease was incurred or contracted during a
period of unauthorized absence.  Paragraph 5-19b stated that any injury or
disease incurred while the member was in a period of unauthorized absence
was incurred not in line of duty.  In order to establish that an individual
was in a period of unauthorized absence for the purpose of LOD
determination, it must have been shown that he voluntarily absented himself
from his unit or other place of duty without proper authority or was absent
from a scheduled duty or restriction at the time the injury or disease was
incurred.  If a member had been granted a normal off-duty pass or other
type of pass, he would not be considered to be in a period of unauthorized
absence merely because of his failure to "sign out" or to pick up his pass
upon departure on authorized pass.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  Under the laws governing the Army Physical Disability
Evaluation system, soldiers who sustain or aggravate physically unfitting
disabilities must meet several line of duty criteria to be eligible to
receive retirement and severance pay benefits to include that the
disability was not incurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  At the time of the LOD investigation, sworn statements were obtained
from First Sergeant B___ and Staff Sergeant R___.  The statements indicated
the applicant had reported for the 6:00 a.m. accountability formation and
then absented himself for the remainder of the day, missing guard duty that
afternoon.

2.  The applicant contended at the time that he was given a pass on the day
he was shot.  However, it appears no evidence was found by the IO to
corroborate his contention.  In addition, he now contends that he was
headed to guard an empty motor pool when he was shot.

3.  In addition, the applicant's disciplinary history both before and after
his injury (to include the partially burned marijuana cigarette found in
his clothing the day of the injury) does not lend credibility to his
contentions.  Without substantiating evidence, it appears the IO and
approval authorities made a proper LOD determination, thereby making him
ineligible to be processed through the Physical Disability System.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 May 1989.  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
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jed___  __jbg___  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.




            ____Mark D. Manning___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000418                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |122.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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