RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	29 March 2007  
	DOCKET NUMBER:  AR20060013675 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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 item 26a (Non-Pay Periods Time Lost [Preceding Two years]) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows the entry " 23NOV72 - 22JAN73 (23 November 1972 to 22 January 1973), count as service time (sic time served on active duty).

2.  The applicant states, in effect, that he was in the base hospital during the time shown in item 26a, of his DD Form 214.  

3.  The applicant provides a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 June 1973, the date of his release from active duty.  The application submitted in this case is dated 18 September 2006.

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's record shows he was inducted into the Army of the United States on 3 May 1971, for 2 years, with an established expiration of term of service (ETS) of 2 May 1973.  The applicant successfully completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Monmouth, New Jersey.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 26L, Tactical Microwave Systems Repairer.  He was promoted to pay grade E-3 on 5 November 1971. 






4.  On 22 November 1972, during the course of the evening, the applicant was observed to be drinking and intoxicated.  On 23 November 1972, at 0030 hours, he was granted permission to leave the site in a Government vehicle to pick up three other Soldiers at a local bar, who were stranded.  On the return trip, he lost control of the vehicle and crashed into a tree.  The impact of the vehicle resulted in injuries.  

5.  On that same day, at 1100 hours the applicant was admitted to the 97th General Hospital, in Frankfurt, Germany, for multiple injuries and phoneumothocox.  He remained as an inpatient.

6.  An informal investigation revealed that he had been drinking on duty prior to the accident.

7.  On 23 November 1972, a LOD (line of Duty) investigator was appointed to investigate circumstances prior to, after, and results of the accident.

8.  On 2 January 1973, the investigating officer (IO) completed his investigation.  The IO determined that the applicant's injury was found to be not in LOD – due to own misconduct.  The findings were approved on 10 January 1973.  

9.  The applicant was unavailable for duty during the period 23 November 1972 through 22 January 1973.  

10.  On 16 February 1973, the applicant was notified of his right to appeal the final determination of the investigation.  He was informed that intentional misconduct or neglect was the proximate cause of injuries sustained in the motor vehicle accident.  He was also informed that he was liable to serve for such period as necessary to complete his full term of service or obligation, exclusive of time lost due to injuries which were the result of his own misconduct.

11.  The applicant served until he was honorably released from active duty on 26 June 1973, 55 days after his normal ETS.   He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

12.  Item 26a, of the applicant's DD Form 214, shows the entry "23NOV72 22JAN73 (23 November 1972 to 22 January 1973).

13.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS), of the applicant's DA Form 20 (Enlisted Qualification Record), shows time lost from 23 November 1972 to 22 January 1973, 61 days, AR 600-10 NLD (not in line of duty). 
14.  Army Regulation 635-5, in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  It states, in pertinent part, that item 26a will be completed by entering the inclusive dates of non-pay periods/time lost during the preceding 2 years.

15.  Army Regulation 600-200, in effect at that time, prescribed policy and procedures pertaining to the career management of Army enlisted personnel.  
Chapter 9 provided for the preparation and maintenance of the Enlisted Qualification Record (DA Form 20).  Paragraph 9-57 pertained to item 44 (Time Lost Under Section 972, Title 10, United States Code, and subsequent to normal 
ETS.  It states, in effect, that the time lost will be entered when an individual is absent because of their inability to perform duty through disease or injury, as the result of their own misconduct.

16.  Army Regulation 600-33 (Line of Duty Investigations), in effect at that time, establishes policy and procedures for investigating the circumstances under which the disease, injury, or death of a member was incurred, and provides principles and considerations in determining LOD status.   

17.  Paragraph 2-7, of Army Regulation 600-33, pertained to unauthorized absence.  It states, in pertinent part, that any injury or disease incurred while the member is in a period of unauthorized absence is incurred not in LOD unless the individual was mentally unsound at the inception of unauthorized absences.  When there is a requirement that an individual be present at a specific place and time, such a requirement establishes an administrative restriction for LOD purposes.  In order to corroborate this restriction, the pertinent part of the directive establishing the requirement should be extracted and attached to the report of investigation.  If the driver of a Government vehicle on an authorized trip is injured during an unjustified deviation from his assigned route, he should be considered absent without authority for LOD purposes.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was observed to be drinking and intoxicated, during the course of the evening, on 22 November 1972.  He was granted permission on 23 November 1972, to leave the site in a Government vehicle to pick up three other Soldiers that were stranded.  On the return trip, he lost control of the vehicle and crashed.

2.  An LOD investigation was conducted.  It determined that the applicant's injury was found to be not in LOD – due to own misconduct.  The findings were approved.  
3.  The applicant was provided the option to appeal and that intentional misconduct or neglect was the proximate cause of injuries sustained in the vehicle accident.  He was liable to serve for such period as necessary to complete his full term of service or obligation, exclusive of time lost due to injuries which were the result of his own misconduct.

4.  The applicant alleges that the time period shown in item 26a, of his DD Form 214, should count as time served on active duty.  The evidence shows that he was injured during an unjustified deviation on 23 November 1972 and remained hospitalized until 22 January 1973, 61 days.  However, according to regulatory authority, this time period was considered as absent without leave (AWOL) for LOD purposes.  His AWOL time of 61 days was counted as a non-pay period and time lost.  Therefore, the entry shown in item 26, of his DD Form 214, is correct as currently constituted.  There is no basis to change item 26, of his DD Form 214.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 June 1976.  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

___e____  __MJF __  __LB____  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.




____Lester Echols_________
          CHAIRPERSON




INDEX

CASE ID
AR20060013675
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19730626
DISCHARGE AUTHORITY
AR .635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129
2.

3.

4.

5.

6.