RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070018035 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 DA Form 3713, Data for Retired Pay, be corrected to show that his disability was the result of an instrumentality of war and incurred in line of duty.

2.  The applicant states that he was on a North Atlantic Treaty Organization (NATO) exercise involved in a field problem when he was struck by a military vehicle.

3.  The applicant provides a letter in support of his request and excerpts from his military records.  The letter is from an individual whose relationship to the applicant has not been established.  In that letter, the writer expands the applicant’s request to asking that his DD Form 214 also be corrected to reflect the proper amount of time he served both on active and on inactive duty.

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’s military records show that he enlisted in the Regular Army on 29 June 1974.  He was awarded the military occupational specialties of motor transport operator and light wheel vehicle mechanic and was promoted to pay grade E-6.

3.  On 14 September 1983, the applicant was sitting in a truck in the field when his truck was rear ended.  There is no evidence to show what type of truck the applicant was sitting in or what rear ended the applicant’s truck.

4.  On 27 August 1987, the applicant was considered by an informal Physical Evaluation Board (PEB), which determined that he was physically unfit and recommended that he be placed on the Temporary Disability Retired List (TDRL), rated 40 percent disabled.  Item 10 of the Physical Evaluation Board Proceedings shows that the applicant’s retirement was not based on 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.  

5.  The applicant was honorably released from active duty on 24 March 1988 and was transferred to the TDRL the following day.

6.  On 8 August 1989, while the applicant was assigned to the TDRL, a PEB convened and determined that the applicant was physically unfit and recommended that he be discharged with severance pay, rated 10 percent disabled.  The applicant nonconcurred and demanded a formal hearing.

7.  On 12 April 1991, a formal PEB convened and determined that the applicant was physically unfit and recommended that he be placed on the Retired List, rated 100 percent disabled.  Item 10 of the Physical Evaluation Board Proceedings, which would have an entry if the applicant’s retirement was based on 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, had “Not applicable” entered.

8.  Army Regulation 635-40 defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability must be incurred incident to a hazard or risk of the service.

9.  Army Regulation 15-185, the regulation which governs the ABCMR, states that applicants usually are Soldiers or former Soldiers of the Active Army, the U.S. Army Reserve (USAR), and in certain cases, the Army National Guard of the United States (ARNGUS) and other military and civilian individuals affected by an Army military record.  Requests are personal to the applicant and relate to military records.  Requests are submitted on a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552).  Soldiers need not submit applications through their chain of command.  An applicant with a proper interest may request correction of another person’s military records when that person is incapable of acting on his or her own behalf, missing, or deceased.  Depending on the circumstances, a child, spouse, parent, or other close relative, heir, or legal representative (such as a guardian or executor) of the Soldier or former Soldier may be able to demonstrate a proper interest.  Applicants must send proof of proper interest with the application when requesting correction of another person’s military records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DA Form 3713, Data for Retired Pay, be corrected to show that his disability was the result of an instrumentality of war and incurred in line of duty.

2.  The records show that the applicant was in a parked truck when it was rear ended by something which is not identified in the applicant’s military records.

3.  The applicant’s PEB determined that the applicant’s disability was not the result of an instrumentality of war.  It is this determination which formed the basis for the entry on the applicant’s DA Form 3713, Data for Retired Pay, which the applicant requested to be corrected.

4.  The PEB’s determination appears to be proper and equitable.  There is no evidence or indication that the truck the applicant was a sitting in was designed primarily for military service.  However, even if it was, the truck was parked.  Therefore, the applicant’s sitting in the truck did not subject him to a hazard peculiar to military service.  The applicant would have been subjected to the same hazard under similar circumstances in civilian pursuits.

5.  As for the request to correct the applicant’s DD Form 214 to reflect the proper amount of time he served both on active and on inactive duty, the letter is from an individual whose relationship to the applicant has not been established.  As such, that individual is not a valid applicant and the request made by that individual cannot be considered by the ABCMR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JLP  __  __TSK__  __DWT__   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.




      ___        TSK                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070018035



5


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508