RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070015933 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 rank of Specialist (SPC)/E-4 be restored.

2.  The applicant states, in effect, that he suffered a severe head injury while in Germany.  He was medically evacuated to William Beaumont Army Medical Center and he was not properly treated for his head injury, which he still suffers from today.  The applicant further states that he was a good Soldier before his head injury and that injury was the cause of him being reduced from SPC to Private (PVT)/E-1. 

3.  The applicant provides a memorandum from the Department of Veteran Affairs, dated 10 October 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant had prior service in the U.S. Army Reserve.  He enlisted in the Regular Army on 19 May 1989.

3.  The applicant arrived in Germany and was assigned to B Company, 8th Signal Battalion, 8th Infantry Division on or about 30 May 1989.  On 8 December 1989, the applicant sustained multiple life threatening injuries in a motor vehicle accident.  His injuries included a comminuted, closed fracture of the left femoral shaft, an open fracture of the left radius and ulna, a fracture of the right frontal sinus wall, a ruptured spleen, and cerebral hygromas (a buildup of fluid in the area between the dura and the arachnoid membranes).  He was air evacuated to William Beaumont Army Medical Center, El Paso, Texas, arriving on 2 February 1990.  On 8 February 1990, the applicant was assigned to C Company, Medical Holding Company as a patient.

4.  On 1 April 1990, the applicant was promoted to the rank of Specialist (SPC)/E-4.

5.  Evidence of record shows that the applicant was absent without leave (AWOL) for the period 2 May 1990 through 3 May 1990 and the day of 5 May 1990.

6.  A DA Form 4187 (Personnel Action), dated 24 May 1990, shows that the applicant's commander verified that the applicant was reduced to the grade of Private First Class (PFC)/E-3 by Article 15 on 22 May 1990.

7.  Evidence of record shows that the applicant was AWOL for the periods 
13 June 1990 through 21 June 1990, 23 June 1990 through 9 July 1990, 
12 July 1990 through 1 August 1990, and 8 August 1990 through 9 August 1990.

8.  On 17 August 1990, a Physical Evaluation Board (PEB) found the applicant to be unfit due to complete loss of pronation and supination of left forearm, secondary to open fracture left radius and ulna with damage to radial, median and ulnar nerves and with radial ulnar synostosis with secondary complication of polyneuropathy with hypesthesia and weakness to the left hand; diplopia secondary to neuropathy, incomplete, of the right sixth cranial nerve secondary to a closed head injury with closed fracture of the right frontal sinus and cerebral hygromas; and status surgical repair of spleen, resolved, rated as adhesions of peritoneum mild with a 40 percent disability rating.

9.  On 20 August 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.  His punishment consisted of reduction to the grade of Private (PVT)/E-1 effective 20 August 1990.

10.  On 15 April 1991, the applicant retired after completing 2 years, 4 months, and 23 days of creditable active service and was placed on the retirement list for permanent physical disability on 16 April 1991 with a 40 percent disability rating.

11.  The applicant’s DD Form 214 with the period ending 15 April 1991 shows in item 4a (Grade, Rate or Rank) the entry “PV1” and item 4b (Pay Grade) the entry "E-1."

12.  The applicant's medical records are not available.




DISCUSSION AND CONCLUSIONS:

The applicant contends that his rank of SPC should be restored.  Evidence of record shows he suffered a severe head injury from a motor vehicle accident in Germany and was medically evacuated to the States.  While assigned to a medical holding company he was reduced from SPC to PFC for being AWOL on several occasions, and he was reduced from PFC to PVT for wrongful use of marijuana.  There is no evidence and the applicant has not provided evidence that shows his head injury or any resulting mental disorder was the cause of his misconduct.  There is no basis for granting applicant's request to restore his rank to SPC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MDM_  __JCR __  ___RCH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___Mark D. Manning__
          CHAIRPERSON




INDEX

CASE ID
AR20070015933
SUFFIX

RECON

DATE BOARDED
13 MARCH 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
112.0200.0000
2.

3.

4.

5.

6.