IN THE CASE OF:	

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080008939 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the results of the line of duty (LOD) investigation in the death of her husband, a former service member (FSM), be changed from "Absent without Authority" to "Absent With Authority" and "In line of duty" while serving in Company C, 2nd Battalion, 502nd Airborne Infantry Regiment in Vietnam. 

2.  The applicant states she does not believe the Army's LOD investigation regarding her husband's death was conducted thoroughly.  She further states that letters from Colonel (COL) M****y, Major (MAJ) C****r, Chief Warrant Officer Two (CW2) S***h, and Master Sergeant (MSG) R****a, who were in her husband's unit, substantiate that her husband was not absent without leave (AWOL) at the time of his death.  She states the investigating officer did not interview anyone from her husband's unit and the investigation focused on the damage to the vehicle and any possible charges which could have been made against the driver.

3.  The applicant provides, in support of her application, copies of a 
DA Form 52-2 (Statement of Casualty), her certificate of marriage to the FSM, her certificate of marriage to her second husband, her divorce decree from her second husband, letters from COL M****y, MAJ C****r, CW2 S***h, and 
MSG R****a, and a certificate of honorable service for the FSM.




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 FSM's military personnel record shows he initially enlisted in the Regular Army on 17 November 1959 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 111 (Light Weapons Infantryman). On
17 November 1962, the FSM reenlisted for a period of 3 years.

3.  On 3 February 1964, the FSM was assigned to Company C, 2nd Battalion, 502nd Infantry at Fort Campbell, Kentucky.  His unit deployed to the Republic of Vietnam on 8 July 1965.

4.  On 11 October 1965, the FSM was fatally injured in a vehicular accident in Bangoi, Republic of Vietnam.

5.  A Criminal Investigation Division (CID) investigation was conducted from 
11 - 31 October 1965 to determine whether negligent homicide was involved in a traffic accident that occurred on 11 October 1965 where one American Soldier had been pronounced dead on arrival and another Soldier had been admitted to the hospital.  A copy of this report was included with the LOD investigation.  However, much of the CID Report is unreadable and only limited results of the report are provided.  

6.  The CID Report states that at the time of the accident the FSM and his driver, Private First Class L***o, were not authorized to be in the area where the accident occurred and they did not have either verbal or written permission to be absent from their unit from about 1100 hours until the time of the accident on 
11 October 1965.



7.  Included with the CID Report are eight interviews with CID investigators.  
Some of these statements are unreadable.  The readable statements, or portions thereof, related in most part to who was driving the vehicle and how much alcohol was consumed by the FSM and the driver prior to the accident.

8.  During an interview with a CID investigator on 23 October 1965, Second Lieutenant (2LT) F***y stated he had informed all of his squad leaders who were to inform everyone in their squad that the area of Bangoi was off limits for anything other than official business.  When asked if Private First Class (PFC) L***o was absent without authorization prior to the accident 2LT F**y stated PFC L***o was absent from his unit without authorization from about 1230 until the time of the accident on 11 October 1965.

9.  During an interview with a CID investigator on 25 October 1965, PFC L***o stated he did not know that the area of Bangoi was off limits to all personnel unless they had written authorization from their unit commander.  When asked by the CID investigator if he knew he was absent without authority from his unit between the hours of 1230 and the time of the accident, PFC L***o stated he did not know if he was or not.

10.  On 27 November 1965, a DA Form 2173 (Statement of Medical Examination and Duty Status) was signed by the FSM's company commander, then Captain (CAPT) M****y.  CAPT M****y determined the FSM was absent without authority at the time of his death.  In Item 30 (Remarks) of the DA Form 2173 
CAPT M****y indicated the FSM was in a defensive position and that he was absent without proper authority at the time of his death.  He further indicated the FSM was absent from 1130 hours to 2000 hours, 11 October 1965.

11.  On 22 December 1965, A DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status) was completed.  This report determined the FSM was absent without authority at the time of his death.  A line of duty finding was not made because the injuries resulted in the FSM's death.  

12.  On 3 April 1970, the applicant remarried and she was divorced on 28 July 2006.

13.  In a letter, dated 14 February 2008, from the FSM's former company commander, now COL M****y, Retired, to the applicant, COL M****y states he has now been appraised of new facts concerning the duty status of her husband at the time of his death.  He states that based on facts described in statements from CW2 S***h and MAJ C****r the FSM'S death should have been determined to be "in line of duty."  

14.  COL M****y further states that on the day of the accident the platoon leadership informed him and the first sergeant that the FSM was AWOL at the time of the accident.  He states they trusted the platoon leadership and were aware the system would appoint an investigating officer to derive an impartial set of the facts in the case.  He further states that due to the combat situation the company was involved in, he did not even remember signing the paperwork concerning the FSM.  He states it is now clear that the FSM was following orders from a Staff Sergeant (SSG) A***n at the time of his death.  COL M****y states he now joins MAJ C****r and CW2 S***h in requesting that the FSM's status be changed to reflect he was absent with authority and in the line of duty at the time of his death.

15.  In a letter, dated 20 January 2008, from the FSM's former platoon leader, MAJ C****r, Retired, to the applicant, MAJ C****r stated it was now evident the FSM was in line of duty at the time of the accident according to the affidavit from CW2 S***h and a letter from MSG R****a wherein they stated the FSM was told by SSG A***n to take the truck and driver into the nearby town for provisions.  MAJ C****r further states if these facts had been known at the time, the FSM would not have been considered absent without authority.  MAJ C****r further stated that their actions at the time may have been dictated by unusual events and recommends the FSM's status be changed to reflect he was absent with authority and in the line of duty at the time of his death.

16.  In a letter, dated 9 January 2008, from CW2 S***h, Retired, to the applicant, CW2 S***h stated he was present when SSG A***n told the FSM to take the truck and go to the village and get some ice.  He stated he jumped on the truck to go with the FSM, but SSG A***n told him to get off the truck.  He further stated that he did not think the platoon leader or the platoon sergeant knew that SSG A***n had given the order to the FSM to go to the village to get ice.

17.  In a letter, dated 7 February 2008, from MSG R****a, the FSM's former platoon sergeant, to the applicant, MSG R****a stated he was not aware the FSM had been determined to be absent without authority at the time of the accident and his death.  He further stated the FSM was part of a detail to fill sandbags on the day of the accident.  He further stated that SSG A***n came to him sometime after the accident and admitted that he had told the FSM to take the truck and driver to the nearby village and get supplies and ice.  He further stated that he recommends the FSM's status be changed to reflect he was absent with authority and in the line of duty at the time of his death.



18.  Army Regulation 600-33 (Line of Duty Investigations), then in effect, provided that when a member dies the LOD finding is determined by the Veterans Administration (VA).  A finding will not be shown on LOD reports on death cases.

19.  Army Regulation 600-33 provided, in pertinent part, that to establish a person was AWOL for LOD purposes, it must be shown that he or she voluntarily left his or her unit or organization or other place of duty without proper authority or that he or she was absent from a scheduled duty or restriction at the time of injury or disease.  This regulation further provided that the immediate commander's (company equivalent unit or higher level) finding of the member's duty status at the time of the injury, disease, or death is final.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the LOD investigation was not conducted thoroughly and she refers to interviews conducted during the CID investigation.

2.  The CID investigation was conducted to determine if charges of negligent homicide would be brought against the driver of the vehicle.  During the course of the investigation it was revealed that the FSM and the driver were absent without authority.  However, the FSM's duty status was not the focus of the investigation.  The FSM's duty status was the responsibility of his immediate commander whose finding is final.

3.  In cases where a member dies, the line of duty finding is determined by the VA.  No line of duty findings are shown on LOD reports.  Therefore, the finding of in line of duty or not in line of duty is not within the jurisdiction of the Board.

4.  The statement provided by COL M****y has been carefully considered.  However, his statement is based on retrospective thinking concerning an incident that occurred over 40 years ago.  His determination of the FSM's duty status was made after the completion of the CID investigation.  He stated he trusted the platoon leadership who were in the best position at the time to determine if the FSM was absent without authority.  The immediate commander's finding of the member's duty status at the time of the injury, disease, or death is final.  Therefore, COL M****y's statement is insufficient evidence to change the duty status finding that was made over 40 years ago.

5.  The statements made by the FSM's former platoon leader and platoon sergeant were also considered.  However, these are the same individuals who were in the best position to advise the company commander of whether the FSM 
was or was not absent without authority at the time of the accident.  In his statement COL M****y indicated that he had trusted the platoon leadership prior to making his finding that the FSM was absent without authority.  Therefore, these statements, made over 40 years after the accident occurred, must also be viewed as retrospective thinking, possibly prompted by the negative impact the determination had on the FSM's widow's survivor benefits.

6.  In view of the above, there is insufficient evidence to change the duty status determination of the FSM at the time of his death.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board unanimously determined during their review that the evidence presented was sufficient to warrant a recommendation for partial relief.  The applicant has provided convincing evidence that an error occurred in the determination of the FSM's duty status at the time of death.  An injustice to the applicant also occurred based upon incomplete facts in the investigation of the FSM's death.  The applicant has provided corroborating testimony of the then commander and other unit members who were aware of the FSM's duty status or became fully informed after the fact.

2.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 9d of the DD Form 261 pertaining to the FSM, dated 28 November 1965 by:

   a.  deleting the "X" indicating "absent without authority"; and
   
   b.  adding the "X" reflecting "absent with authority."



3.  The Board further determined that the evidence presented is insufficient to warrant the remaining portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the DD Form 261 to reflect "In Line of Duty."



      _________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008939



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ABCMR Record of Proceedings (cont)                                         AR20080008939



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