IN THE CASE OF:	  

		BOARD DATE:	 1 September 2011 

		DOCKET NUMBER:  AR20100030135 


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 injuries he sustained in a motorcycle accident on 29 May 1962 be determined to have been incurred in the line of duty (LOD).

2.  The applicant states:

* his records show that neither the investigating officer (IO) nor his commanding officer found that any willful misconduct occurred on his part to have caused the accident
* he has limped favoring his injured foot since the time of the accident 
* there is a visible deformity and scar of the foot
* for 2 1/2 years he never signed out because he was doing favors at the club in which he worked
* his commanding officer found his accident to be not in the LOD because he feared action would be taken against him because they had allowed him not to sign out on pass for 2 1/2 years
* he believes a cover-up was involved because his name was not on the investigating officer's report
* someone else signed his name on the report as if they were him but it is not his signature
* he would be glad to take a lie detector test if necessary to prove what he is saying is true
* his health is very fragile and he is on oxygen full time

3.  The applicant provides:

* a VA Form 21-4138 (Department of Veterans Affairs (VA) - Statement in Support of Claim), dated 8 February 2010
* a statement from P---- C-----, applicant's neighbor, dated 11 June 2011
* a DD Form 735 (Health Record - Abstract of Service), dated between
2 March 1961 and 25 September 1963
* a Standard Form (SF) 88 (Report of Medical Examination), dated
30 August 1963
* a AGPZ FL 122, subject:  LOD Status, dated 11 September 1962
* Correction to LOD Status Determination, dated 11 September 1962
* a AGPZ FL 122, subject:  LOD Status, dated 26 July 1962
* a DD Forms 481-3 (Clinical Record Cover Sheet), dated 25 July 1962
* DA Form 8-274 (Medical Condition - Physical Profile Record, dated
24 July 1962
* SF 502 (Clinical Record - Narrative Summary), dated 23 July 1962
* DD Form 261 (Report of Investigation - LOD and Misconduct Status), dated 14 June 1962
* DA Form 19-24 by A----- C----, Motor Patrolman, Honolulu Police Department, dated 14 June 1962
* DA Form 19-24 by Sergeant (SGT) J----- E---- C-------, other accident party, dated 12 June 1962
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 June 1962
* DA Form 19-24 (Statement) by the applicant, dated 29 May 1962
* a DD Form 481-2 (Clinical Record Cover Sheet (for addressograph), dated 9 February 1961
* IO's sketch of the point of accident

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 enlisted in the Regular Army on 9 November 1960 for a period of 3 years in the rank/grade of private (PV1)/E-1.  He completed training as a cook.  He was advanced to private (PV2)/E-2 on 9 March 1961.  He was assigned to Company A, 125th Signal Battalion, 25th Infantry Division, Oahu, Hawaii, on 9 May 1961.  He was advanced to private first class (PFC)/E-3 on
10 July 1961.

3.  On 14 May 1962, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 3 May to 9 May 1962.  He was sentenced to:

* Confinement at hard labor for 1 month (suspended for 1 month)
* Reduction to PV1/E-1
* A forfeiture of $50.00 pay per month for 1 month

4.  On 29 May 1962, the applicant was admitted to the U.S. Army Tripler General Hospital, HI as a result of an injury he sustained in a motorcycle accident.  He was diagnosed with a lacerated left ankle and a compound fracture of the middle finger on his left hand.  His DA Form 2173 shows he was not under the influence of alcohol or drugs and that he was mentally sound.  On the DA Form 2173, the applicant's commander asserted:

* he was absent without authority
* he was off duty but was without an authorized pass at the time of the accident
* he had been sentenced by a summary court-martial on 14 May 1962 of being AWOL
* the approved sentence provided for reduction to pay grade E-1, forfeiture of $50.00, and confinement for 30 days
* confinement for 30 days was suspended for 1 month unless sooner vacated
* pass privileges during the period of suspended confinement were to be as requested by the applicant and approved by his commander
* the applicant had not requested a pass

5.  On 6 June 1962, an IO was appointed to investigate the facts and circumstances surrounding the injuries sustained by the applicant.  During the investigation statements were obtained from the applicant, the other individual 

involved in the accident, and the police officer who was called to the scene of the accident.  The applicant stated he was not at fault.  He also admitted that he was not signed out on a pass, he did not have a pass with him, and he did not have a license to operate a motorcycle.  The police officer and the other individual involved in the accident agreed that the applicant was at fault for the accident because his motorcycle struck the car of the other individual.

6.  The Report of Investigation was completed on 14 June 1962.  In the report the IO stated that while operating his motorcycle on the night of 29 May 1962, the applicant struck the automobile driven by the other individual on its left side at a point just behind the leading edge of the left front fender.  Damage continued along the entire left side of the automobile.  The IO found that the accident was not in the LOD and not due to own misconduct.

7.  On 23 June 1962, the appointing authority disapproved the IO's findings stating that Army Regulation 600-140 (LOD Determinations), paragraph 20(b), indicate that a person will not be considered to be in a period of unauthorized absence for the purpose of an LOD investigation because of a failure to "sign out" or to pick up his pass.  In addition, failure to have a motorcycle license and his apparent failure to have his headlights on at the time of the accident is not considered criminal by its inherent motive as defined in Army Regulation 600-140 and Department of the Army Pamphlet 27-6 (Commanders’ Legal Guide To Military Criminal Law, Administrative Law, And Legal Services for Soldiers), paragraph 12, rule 4.  The appointing authority substituted findings in the LOD.  The reviewing authority approved the findings of the appointing authority on
3 July 1962.

8.  On 26 July 1962, The Adjutant General (TAG) disapproved the action of the reviewing authority.  TAG stated that the applicant was under certain restrictions and he was required to request a pass and obtain approval.  Since he did not comply with these specific instructions, it is held by the Department of the Army that he was AWOL and his injury was incurred not in the LOD - not due to own misconduct.

9.  The applicant's commanding general (CG) was notified on 26 July 1962 by the Office of TAG that the action of the reviewing authority contained in his report of investigation pertaining to the applicant for the injury incurred on 29 May 1962 in Hawaii was approved.  A correction to the notification was forwarded to the applicant's CG on 11 September 1962, stating that the action of the reviewing authority contained in his report of investigation pertaining to the applicant for the injury incurred on 29 May 1962 in Hawaii was disapproved.

10.  The applicant was honorably released from active duty on 9 November 1966 as an overseas returnee. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

11.  The letter the applicant submits from his neighbor corroborates his contention that he is in fragile health due to chronic congestive heart failure and that he is currently on oxygen 24-hours a day.  She states she is assisting him in filing his VA claim and requests an expedited decision in his case.

12.  Army Regulation 600-140, then in effect, prescribes procedures for making LOD determinations.  It states injuries or disease will be presumed to have been incurred in the LOD and not because of the member's own misconduct.  The presumption favoring LOD may be overcome only by substantial evidence that injury, disease, or condition causing injury or disease was:

* proximately caused by the intentional misconduct or willful gross neglect of the individual
* incurred or contracted during a period of unauthorized absence
* incurred or contracted while neither on active duty nor engaged in authorized training in an active or Reserve duty status and was not aggravated by the service

13.  The regulation further provides that TAG will make a thorough review of all reports of investigation received and will enter on the report of investigation in the name of the Secretary of the Army the approval or disapproval of the findings of the reviewing authority.  Where disapproval is noted, the corrected findings will be indicated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's final LOD determination was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His 29 May 1962 motorcycle/automobile accident was determined to have been not due to own misconduct because the applicant had not committed any act that caused the actual accident (e.g., driving while intoxicated, fleeing from law enforcement, recklessly operating a motor vehicle, etc.).

3.  However, his injuries were determined to have been incurred not in the LOD because he was under certain restrictions as a result of his summary court-

martial conviction and sentence.  He did not have an authorized pass at the time of his accident as he was required to have one approved by his commander.  He has provided no evidence to show that there was any type of cover-up by his commander because he feared action would be taken against him.

4.  The applicant's fragile condition has also been considered.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs benefits.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR; therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.


5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 that 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)                                         AR20100030135



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ABCMR Record of Proceedings (cont)                                         AR20100030135



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