RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 January 2006
      DOCKET NUMBER:  AR20050007112


      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. Edmund P. Mercanti            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 discharge for physical disability be
corrected from showing that the disability was not incurred in line of
duty, to showing that it was incurred in line of duty.

2.  The applicant states that he was on his way to a muster alert while in
uniform in accordance with orders from his military superior when he was
injured in a car accident.  Afterwards, he reinjured himself in the field.

3.  The applicant provides excerpts from his medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 5 December 1984.  The application submitted in this case is
dated 4 May 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 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.  The applicant’s military records show that he enlisted on 11 July 1978,
was awarded the military occupational specialty of power generation and
wheel vehicle mechanic, and was promoted to pay grade E-4.

4.  On 7 November 1983, a Medical Evaluation Board (MEB) was conducted on
the applicant.  The MEB stated that the applicant had originally injured
his shoulder (third degree acromioclavicular separation) in a Motor Vehicle
Accident (MVA) on 11 April 1979 when he struck an embankment at
approximately 110 Miles Per Hour (MPH).  The MEB continued that the
applicant “had two to three re-injuries of his left shoulder while at Fort
Lewis.”  The MEB referred the applicant to a Physical Evaluation Board
(PEB).

5.  On 5 December 1983, a PEB determined that the applicant was physically
unfit due to post-surgical pain of the left (minor) shoulder.  The PEB
recommended that the applicant be discharged with severance pay, rated
10 percent disabled.  This was based on the presumption that a favorable
line of duty determination would be made on the applicant’s disability.
6.  On 3 April 1984, a formal line of duty investigation was conducted on
the applicant’s dislocated left shoulder which he incurred in a MVA which
occurred outside the city of Roy, Washington, on 11 April 1979.

7.  The Investigating Officer (IO) conducting the investigation stated that
witnesses to the applicant’s accident reported that the applicant was
traveling at a high rate of speed just prior to the accident.  The
applicant also admitted to individuals at the scene of the accident that he
was traveling at a speed of 90 MPH when the accident occurred.

8.  During the course of the investigation, the applicant opted to make a
statement in his own behalf.  In that statement, he said that whether or
not his MVA was in line of duty was not relevant since his disability was
due to accidents he had experienced, and the overworking of the upper parts
of his body, during an exercise at Fort Irwin, California in 1983.

9.  The IO recommended that the applicant’s dislocated left shoulder be
considered to have been incurred not in line of duty – due to own
misconduct (NLD-DOM) based on Army Regulation 600-33, Rule 9.  That
recommendation was approved by the appropriate authority.

10.  Based on the finding of NLD-DOM for the applicant’s dislocated left
shoulder, a revision to the PEB’s proceedings was accomplished on 3 October
1984.  In that revised proceeding, the PEB stated “Since your physical
disability was the result of your own actions and a line of duty
determination of ‘Not In Line Of Duty-Due To Own Misconduct’ has been made,
said disability is not compensable under the Army Disability Program.”  The
PEB revised its recommendation from discharge with severance pay to
separation from the service without entitlement to disability benefits.

11.  Accordingly, on 5 December 1984, the applicant was honorably
discharged due to disability not in line of duty.

12.  Army Regulation 600-33, Rule 9, states that injury because of erratic
or reckless conduct or other deliberate conduct without regard for personal
safety or the safety of others is not in line of duty.  It is due to
misconduct.  This rule has its chief application in the operation of a
vehicle, but may be applied with any deliberate conduct which risks the
safety of self or others.  “Thrill” or “dare-devil” type activities also
are examples in which this rule may be applied.



DISCUSSION AND CONCLUSIONS:

1.  The applicant has never stated that he had not acted in a reckless
manner when he was injured in his MVA.  His contention is that his
disability was due to overuse and injuries which occurred after the MVA.

2.  The applicant’s MEB stated that the applicant had two to three re-
injuries of his left shoulder while at Fort Lewis after his MVA.  The
applicant stated during his formal line of duty investigation that his
disability was due to accidents and overworking the upper parts of his body
during an exercise at Fort Irwin.

3.  However, there is no evidence of the applicant re-injuring his shoulder
after his MVA.

4.  It must be presumed that documents pertaining to the applicant’s
“reinjuries” were available for the MEB, PEB, and IO to review.  Based on
that review, the determination was made that the applicant’s disability,
post-surgical pain of the left shoulder, was due to the injury he received
during his MVA.  The applicant has not submitted any evidence which would
refute that finding.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 December 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 December 1987.  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

___cad__  ____ksj__  ___slp___  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.




            _________Shirley L. Powell_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007112                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060119                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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