IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100021748 


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 correction of his military records by removing statements from a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 26 September 1967, and sworn statements associated with the DD Form 261.

2.  The applicant states his military records show he shot himself in the left side of his face with an M-1 blank and either the blank ricocheted off the tailgate of a vehicle or it was a defective cartridge.  This is not possible because he was not carrying a rifle.  He states he was hiding in the back of a truck and when he stuck his head out of the back of the truck another Soldier was startled and shot him in the face at very close range.  He was knocked to the floor of the truck.

3.  He contends it is obvious that was an error in judgment and was covered up by the first sergeant.  He indicates his statement is completely false and he initialed it after the first sergeant told him it was a paper that said he received treatment.  Then the first sergeant typed in the false statement.  The statement was not handwritten by him.

4.  He points out the statement from Private First Class (PFC) H____ F. R____ [now deceased] does not mention who shot the rifle.  The statement from PFC C____ H. R____, Jr., does not mention how he was shot because PFC C____ H. R____, Jr., was the one who fired the M-1 rifle.  This statement was also typed to cover up the real incident.

5.  He further states he was not sent to a military doctor, instead he was sent to the emergency room of the local hospital.  He was not treated by a military doctor or an eye doctor.  He was denied the care of an eye doctor at the time and now has had six eye operations on his left eye and is legally blind in that eye.  Also, he claims if you read the schedule for the drill day, it does not mention having a class on the safety of handling the M-1 rifle or the dangers of firing blank ammunition.  No such class was ever given.

6.  The applicant provides:

* statements from four fellow Soldiers at the time in question
* DD Form 689 (Individual Sick Slip)
* DA Form 19-24 (Statement)
* DA Form 285 (Accident Report)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DD Form 261
* two DA Forms 19-24 of fellow Soldiers
* Unit Training Schedule
* documentation pertaining to the dangers of M-1 rifle blanks

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.  He enlisted in the New Hampshire Army National Guard on 5 December 1965 for a period of 6 years.  He was ordered to active duty on 1 August 1966 for training and he was released from active duty on 16 December 1966.

3.  A DA Form 19-24, dated 23 September 1967, shows he made the following statement, "While using blank ammunition during a riot control training of a practice sniper attack, I was in the back of a five ton truck and seeing a fellow Soldier approaching I turned and fired and the flash of the rifle bounced back [off] the truck and struck me in the face."  This statement was typed and initialed by the applicant.

4.  He provided a DA Form 19-24, dated 23 September 1967, from PFC C____ H. R____, Jr., which states, "We were having riot control training and during a riot we spotted a sniper in the rear of the truck.  Myself and another soldier proceeded to capture him and when we got beside the truck I looked in and then jumped back before he fired.  When he fired it hit a metal object and bounced back and him in the face."  He also provided a DA Form 19-24, dated 23 September 1967, from PFC H____ F. R____ which states, "I heard a shot and then I climbed into the truck because he said he was hit."  These forms indicate the applicant was the subject of the investigation.

5.  A DA Form 285, dated 23 September 1967, states the applicant sustained a personal injury (powder burns to left side of his face as a result of firing blank ammunition from M-1 rifle) while taking part in riot control training.  This form states the applicant and two other Soldiers were questioned and an examination of their weapons showed only the applicant had fired his weapon.  The form also states, "Question those present leads me to the conclusion that PFC [Applicant] fired his weapon and either a [ricochet] from the back of a truck or a blow back from a defective cartridge was the cause of his injury" and "A safety [briefing] was given [to] the Battery covering the use of blank [ammunition]."

6.  Item 30 (Details of Accident) of a DA Form 2173, dated 23 September 1967, states the applicant fired his weapon with blank ammunition and it either ricocheted from the back of a truck or a blow back from a defective cartridge was the cause of his injury.

7.  Item 9g (Remarks) of a DD Form 261, dated 26 September 1967, states, "PFC [Applicant] was engaged in riot control training, and at the time of the incident was performing sniper training.  He fired a blank cartridge from the rear of a truck, it appears that the charge struck the inside tailgate of the truck and a portion of the powder and paper came back into his left side of the face.  No damage to the eye resulted as checked by the medical physician.  He was returned to duty the same day."

8.  According to the applicant, he was discharged from the New Hampshire Army National Guard in December 1971.

9.  In support of his claim, he provided a notarized statement from then PFC C____ H. R____, Jr., dated 23 February 2010, attesting that his rifle went off and hit the applicant in the face during the training exercise.  He also provided three statements from fellow Soldiers at the time in question.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is taking exception to documents which were created and signed more than 44 years ago.  Those documents indicate the applicant was injured by accident while participating in military training when his weapon discharged a .30 caliber M-1 blank cartridge.  This is what he and all others concerned reported happening.

2.  The applicant now claims his rifle did not fire; it was a fellow Soldier's weapon that discharged and injured him in the face.  He supports this contention with statements made in 2010 from a few of those who were present at the time.  These statements reflect retrospective thinking or second thoughts long after the event in question and attempt to lend credence to the applicant's version.  They fly in the face of the contemporaneous statements these same individuals made 44 years ago.  As such, they are of little evidentiary value.

3.  He contends the accident was covered up by the first sergeant; however, the Accident Report, DA Form 2173, and DD Form 261, with supporting documentation prepared in 1967, were prepared and signed by company-grade officers, not the first sergeant.

4.  The applicant alleges he was denied treatment by a military doctor, he was denied treatment by an eye doctor, and now he is blind in one eye.  There is absolutely no proof of this allegation.  Additionally, the accident occurred at an Army National Guard Armory in Nashua, NH, not on a U.S. military reservation.  Common sense would dictate that he be treated at a civilian care facility.

5.  Based on the foregoing, there is insufficient evidence on which grant the requested relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ___X_____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20100021748



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ABCMR Record of Proceedings (cont)                                         AR20100021748



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