RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 NOVEMBER 2005
      DOCKET NUMBER:  AR20050001774


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 a 12 November 1976 sworn statement be
expunged from his Official Military Personnel File (OMPF).

2.  The applicant states that he never spoke to a Major “M.”  He never made
such a statement.  The content in the statement is embarrassing to him, his
family, his country, and his God.

3.  The applicant provides a copy of the above-mentioned statement, and a
Department of Veterans Affairs (VA) Form 21-4138 (JF) (Statement in Support
of Claim) in which he states that the contents of the interrogation are
totally false.  He received this (the statement) on 1 July 2005.  He states
that he had never seen or heard of the statement before this recent time
frame.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 November 1979.  The application submitted in this case
is dated 10 January 2005.

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 applicant enlisted in the Army for 3 years on 19 June 1974.  He was
trained as an electrician and assigned to Fort Benning, Georgia.

4.  The sworn statement that he provides shows that he and other Soldiers
were part of a work detail on 9 November 1976 on Grandstaff Range.  A
Soldier found a piece of metal on the ground and they were discussing
whether it was a dud or not.  After eating, he had the piece of metal and
threw it at one of the targets.  The metal missed the target and something
exploded.  One of the Soldiers stated that he was hit.  As he walked, he
saw some blood on his arm and knew that he must have been hit also.  He was
put in an ambulance and sent to the hospital.

5.  The statement shows that the applicant’s name was on the statement,
indicating that he made the statement.  The questions asked the applicant
were from a Major “M,” who witnessed the statement.  At the end of the
statement the applicant affixed his signature.  He initialed the first page
of the statement.  The affidavit shows that the statement was subscribed
and sworn to before a    Captain “L,” a Medical Service Corps officer at
Martin Army Hospital at Fort Benning on 12 November 1976, and that the
applicant signed it, attesting to its authenticity.

6.  A 28 April 1977 narrative summary for a Medical Evaluation Board (MEB)
shows that the examining physician, commenting on the applicant’s medical
history, stated that the applicant was injured on 9 November 1976, and the
applicant stated to him (the doctor) that “he was throwing a pork chop bone
to discard it when it inadvertently hit a ‘dud’ shell which he did not
realize was in the area.  This shell exploded and caused him multiple
fragment wounds (as I recall from reading the Line of Duty Determination
Report, the patient stated that he was throwing a bolt to discard them when
they inadvertently hit the shell fragment which he did not see because of
tall grass).”

7.  The applicant underwent MEB and Physical Evaluation Board (PEB)
proceedings, and on 30 September 1977 was placed on the temporary
disability retired list (TDRL) with a 60 percent disability rating.  He was
removed from the TDRL on 30 November 1979 and permanently retired on 1
December 1979 with a 70 percent disability rating.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant made a sworn statement, the
statement that he provides with his application, that he initialed the
first page of the statement, that he affixed his signature at the end of
the statement, and that the statement was subscribed and sworn to before by
an officer authorized by law to administer oaths.  He signed the statement,
and it was witnessed by the officer who questioned him.

2.  There is no evidence and the applicant has not provided any to cast
doubt on the authenticity of the statement.  He made the statement and
swore to it.  There is no error or injustice done to him.

3.  Accordingly, his request to have the statement expunged from his OMPF
is not granted.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 November 1982.  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

___JA___  __TO ___  __CK ___  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.




                                  ____ James Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001774                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051101                                |
|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.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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