RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         21 DECEMBER 2004
      DOCKET NUMBER:  AR2004105274


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Ms. Semma Salter                  |     |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 the 21 October 1977 Physical Evaluation
Board (PEB) proceedings (DA Form 199) be corrected by checking item 10 on
that form to show that his permanent retirement was based on a disability
resulting from injury or disease received in line of duty as a direct
result of armed conflict or caused by an instrumentality of war and
incurred in line of duty during a period of war as defined by law.

2.  The applicant states that his 16 July 1974 DA Form 199 showing that he
was placed on the TDRL (temporary disability retired list) indicated that
his retirement showed that it was based on "a disability resulting from …"
(as indicated above). The block mark so indicating was overlooked on the 21
October 1977               DA Form 199.

3.  The applicant provides a copy of both DA Forms 199 and a copy of his
     17 August 1974 DD Form 214 (Report of Separation from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 21 October 1977.  The application submitted in
this case is dated      3 March 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 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.  On 30 June 1969 the applicant was appointed as a Reserve warrant
officer.  He served in Vietnam as a helicopter pilot.  His awards include
the Army Aviator Badge, Air Medal (25th award with "V" device), Bronze Star
Medal, Distinguished Flying Cross, and Silver Star.

4.  An 8 July 1974 Medical Evaluation Board narrative summary shows that
the applicant was a pilot of a helicopter which crashed about 100 feet
during an air show near Poterville, California about 1500 hours on 8 June
1974.  He underwent treatment and surgery.  His condition at the time of
the MEB was diagnosed as facture, compression, vertebra T12, no major
artery involvement but with nerve involvement; and radiculopathy, cauda
equine, secondary to the first diagnosis, manifested by severe, diffuse
weakness of both lower extremities, but with both normal bowel and bladder
function.  The summary showed that he underwent a laminectomy and fusion
T11 through L1 with a bone graft from the right posterior iliac crest on 17
January 1974.  The MEB recommended that the applicant be referred to a PEB.

5.  On 16 July 1974 a PEB recommended that the applicant be placed on the
TDRL because of his disabilities with a 100 percent disability rating.  The
PEB proceedings (DA Form 199) show that item 10 on that form was checked to
show that his retirement "is based on disability resulting…"

6.  The applicant was placed on the TDRL on 16 August 1974.

7.  On 21 October 1977 a PEB recommended that the applicant be permanently
retired from the service with a disability rating of 50 percent.  Item 10
of the PEB proceedings was not checked.

8.  The applicant was removed from the TDRL on 30 November 1977 and
permanently retired with a 50 percent disability rating on 1 December 1977.


9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation), then in effect, states that when a PEB recommends that a
member be permanently retired from the service, an entry in item 10 of DA
Form 199 will be made only if the DA Form 199 placing the member on the
TDRL did not indicate a finding.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant's disabilities did result from
injuries received in line of duty as a direct result of armed conflict or
caused by an instrumentality of war and incurred in line of duty during a
period of war as defined by law.  The appropriate entry was made in item 10
of the 16 July 1974 PEB proceedings (DA Form 199), placing him on the TDRL.


2.  The applicant's 21 October 1977 DA Form 199 is not erroneous.  Item 10
of that form was not overlooked.  Item 10 is required to be completed only
if not checked when he was placed on the TDRL.  Item 10 was marked when he
was placed on the TDRL.  Consequently, there is no error in this case.
Therefore, his request to correct his 21 October 1977 DA Form 199 is not
warranted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 October 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         20 October 1980.  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

__FE  ___  ___PS __  ___SS __  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.





                            ______Fred Eichorn_______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105274                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041221                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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