RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 May2005
      DOCKET NUMBER:  AR20040004671


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Seema E. Salter               |     |Member               |
|     |Ms. Susan A. Powers               |     |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, in effect, that his Line of Duty Investigation
(LODI), dated 23 January 1964, be corrected by changing the findings from
"Not in the Line of Duty " to "In the Line of Duty."

2.  The applicant states that while in the military he was involved in a
serious automobile accident on 17 August 1963 and, even though he was
honorably separated, he has been denied Veterans Administration (VA)
benefits and medical care.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 1 May 1964.  The application submitted in this case is dated 22
July 2004.

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 available evidence shows that the applicant enlisted in the Regular
Army (RA) on 25 March 1963 for a period of 3 years.  On 8 April 1963, he
was assigned to Fort Gordon, Georgia for Basic Combat Training (BCT) and
Advanced Individual Training (AIT).

4.  The applicant's records contained an LODI that was completed as a
result of injuries he sustained in an automobile accident near Aynor, South
Carolina on 5 June 1963.  The investigation determined that, although the
applicant was not present for duty, he was absent with authority.  His
injuries resulting from the 5 June 1963 accident were found to have
occurred "in the line of duty."  The LODI was concluded on 2 December 1963.

5.  On 12 August 1963, the applicant departed his AIT unit in an absent
without leave (AWOL) status.  On 17 August 1963 while still AWOL, he was
involved in an automobile accident in the vicinity of Conway, South
Carolina and he was
seriously injured.  He was transported to the 354th Tactical Hospital,
Myrtle Beach Air Force Base, Myrtle Beach, South Carolina, where he was
returned to military control and admitted.  At the hospital, the Air Force
initiated a preliminary LODI.  It concluded on 18 August 1963 that the
applicant's injuries were "not in the line of duty, due to own misconduct."
 Because of his injuries, the applicant was medically evacuated to Walter
Reed Army Medical Center (WRAMC), Washington, DC, arriving there on 19
August 1963.

6.  The Air Force notified the applicant's unit at Fort Gordon that he had
been returned to military control and that he was seriously injured.  The
unit initiated an LODI which concluded on 13 January 1964.  The LODI
determined that the applicant was seriously injured in an off-post
automobile accident and that, at the time, he was not present for duty, but
was AWOL.  The applicant was given an opportunity to make a statement, but
he declined.  The LODI found the applicant's injuries occurred "not in the
line of duty – due to own misconduct."  On 15 January 1964, the appointing
authority approved the findings of the LODI and, on 23 January 1964, the
reviewing officer approved the findings.  On 5 February 1964, the applicant
was again interviewed and advised of his rights and the findings of the
LODI.  The applicant provided a statement which is not available for
review.  The LODI was then forwarded to the Fort Gordon Staff Judge
Advocate (SJA).

7.  On 20 March 1964, the SJA disapproved the reviewing authority's action
and concluded the evidence did not show the applicant was the driver of the
vehicle, nor did he interfere with the driver, thus causing the accident.
Therefore, gross negligence could not be imputed to him and the SJA
determined that his injuries were incurred "Not in the Line of Duty - Not
Due to Own Misconduct" in view of AWOL status at the time of the injury.

8.  At WRAMC, the applicant was permanently reassigned from Fort Gordon
because of the serious nature of his injuries.  After recovering
sufficiently from his injuries, he was given a medical evaluation board
(MEB) which found him medically unfit for continued service and found his
injuries occurred in the line of duty; the line of duty determination was
erroneously based on the LODI from the applicant's 5 June 1963 accident.
The MEB recommended the applicant be given a Physical Evaluation Board
(PEB).

9.  The PEB was conducted on 26 March 1964 and found the applicant
physically unfit for further duty.  It recommended that the applicant be
separated without severance pay because the PEB associated the correct LODI
– the one concluded on 13 January 1964 – with the injuries under review.
The PEB pointed out that the MEB had used the wrong LODI in reaching its
conclusion concerning line of duty.
10.  On 27 March 1964, the applicant concurred with the findings and waived
a formal hearing of the case.  On 22 April 1964, the PEB findings were
approved.

11.  On 1 May 1964, the applicant was separated under the provisions of
chapter 6, Army Regulation 635-40, due to physical disability with a
general discharge under honorable conditions.  He had completed 1 year and
1 month of active military service.

12.  Army Regulation 635-40 (Personnel Separations-Physical Evaluation for
Retention, Retirement, or Separation) 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.

13.  Title 10, United States Code, Section 1207, then in effect, provided
that each member of the armed forces who incurs a physical disability that,
in the determination of the Secretary concerned, makes him unfit to perform
the duties of his office, grade, rank, or rating, and that resulted from
his intentional misconduct or willful neglect, or was incurred during a
period of unauthorized absence, shall be separated from his armed force
without entitlement to any benefits under this chapter.

14.  Army Regulation 600-140 (Line of Duty Determinations), then in effect,
prescribed procedures for making line of duty determinations.  It stated,
in pertinent part, that injury or disease is presumed to have occurred in
the line of duty and not because of a Soldier's misconduct, and that:

      The presumption favoring line of duty may be overcome only by
      substantial evidence that the injury or disease, or condition causing
      injury or disease was –
           (1) Proximately caused by the intentional misconduct or
              willful gross neglect of the individual.
           (2) Incurred or contracted during a period of unauthorized
              absence.
           (3) Incurred or contracted while neither on active duty nor
              engaged in authorized training in an active or Reserve
              duty status and was not aggravated by the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's LODI was accomplished in compliance with applicable
regulations, then in effect, with no indication of procedural errors which
would have jeopardized his rights.

2.  The applicant's injuries from the 17 August 1963 automobile accident
were determined to have been "not in the line of duty – due to own
misconduct."  This was changed following a legal review to "not in the line
of duty – not due to own misconduct" because the applicant had not
committed any act that caused the actual accident (e.g., driving while
intoxicated, fleeing from law enforcement, recklessly operating a motor
vehicle, etc.).

3.  The applicant has established no basis for changing the findings of the
LODI.

4.  Eligibility for veteran's benefits, to include VA medical benefits,
does not fall within the purview of this Board.  Additionally, this Board
does not grant relief solely for the purpose of gaining VA benefits.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 May 1964; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 April 1967.  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

__mhm___  __ses___  __sap___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004671                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050526                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |122.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |




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