IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110000379 


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 the DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status) be corrected to show his injury was "in LOD" instead of "not in LOD - due to own misconduct."

2.  The applicant states:

	a.  He was assigned to the 3rd Battalion, 35th Field Artillery Group, Germany in March 1975 when he was assaulted.  On 13 March 1975, he was on guard duty and at 2300 hours Private (PV2) WJR was scheduled to relieve him.  He went to PV2 WJR's room and knocked on his door to wake him up.  PV2 WJR's roommate told him that PV2 WJR was sleeping and not to bother him.  He told the duty sergeant and the duty sergeant told him to go back and get PV2 WJR.  He went back upstairs and PV2 WJR's roommate let him in the room.  He tried to explain to PV2 WJR that he would pull the duty for him but he had to go downstairs first and sign in.  Once they got into the hall PV2 WJR became loud and angry because he had been woken-up and he made statements about the applicant's mother.  He grabbed PV2 WJR by the collar and told him to shut up or he would kick his a**.  PV2 WJR then attacked him with a switchblade and he defended himself by knocking PV2 WJR down and throwing a wax can at him; but he missed PV2 WJR and hit the door instead.  PV2 WJR then attacked and stabbed him in the temple, heart, and lungs.

	b.  He has been diagnosed with post-traumatic stress disorder due to the incident that occurred in March 1975 and the Department of Veterans Affairs (VA) will not approve his claim because of the LOD findings.
3.  The applicant provides:

* DD Form 261
* Article 32 Report of Proceedings
* A VA Rating Decision
* Seven pages of VA medical record progress notes
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)

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 records show he enlisted in the Regular Army on 26 July 1974 and he held military occupational specialty 36K (Tactical Wire Operations Specialist).  He served in Germany from 23 January to 11 June 1975 while assigned to 3rd Battalion, 35th Field Artillery and from 24 July 1975 to 30 March 1976 while assigned to 1st Battalion, 75th Field Artillery.

3.  He was honorably released from active duty on 31 March 1976 by reason of failure to meet acceptable standards for continued military service.  He completed 1 year, 7 months, and 4 days of creditable active service with 32 days of time lost.  He was awarded the National Defense Service Medal.

4.  The applicant provides a DD Form 261, dated 12 May 1975, wherein it shows the following:

	a.  The applicant was "stabbed while fighting with another Soldier."  Item 9g (Basis for Findings) (Remarks) of this form stated that on 13 March 1975, the applicant was admitted to the U.S. Army Hospital in Wurzburg (Germany) for treatment of stab wounds.  He had been involved in a dispute in the billets, he attempted to wake PV2 WJR for guard duty, a fight ensued, and he was stabbed by PV2 WJR.  The investigating officer (IO) stated his investigation revealed there was no intentional misconduct on the part of the applicant.  His finding was "in the LOD."  The applicant was unable to be questioned, and the Article 32 investigation against PV2 WJR was attached.

	b.  On 21 May 1975, the appointing authority approved the IO's findings and on 23 May 1975, the reviewing authority approved the findings. 

	c.  On 6 June 1975, the approving authority disapproved the LOD findings and changed the findings to "not in the LOD - due to own misconduct."  Evidence indicated [the applicant] was at least equally at fault in starting or continuing the altercation with PV2 WJR.  Therefore, in accordance with Rule 7, Appendix C, Army Regulation 600-33 the above finding was made.

5.  The applicant provides the Article 32 record of proceedings, dated 7 April 1975, wherein the applicant testified that PV2 WJR and he got into an argument when he went to wake PV2 WJR for guard duty.  PV2 WJR pulled a knife on the applicant and when the applicant tried to grab the knife he was stabbed by PV2 WJR.  Under cross examination, the applicant testified that he had drunk a few beers in a friend's room earlier that evening and that he may have grabbed PV2 WJR and pushed him against the wall because PV2 WJR made statements about the applicant's mother.  After PV2 WJR stabbed the applicant, he went back to his room, got an iron to protect himself, and went looking for PV2 WJR. 

6.  PV2 WJR's roommate testified that he and PV2 WJR were drinking the night of the stabbing when the applicant came to their room to inform PV2 WJR he had guard duty.  PV2 WJR and the applicant went into the hall and the roommate could hear what sounded like someone wrestling outside the door.  He heard them exchange harsh words.  PV2 WJR came back to the room and later the applicant came to the room and harsh words were again exchanged between them.  The roommate could not see the applicant as he was in the hall and PV2 WJR was in the doorway with a knife in his hand, but during the course of the argument a 5-gallon wax can was thrown in the room.  Immediately after the can was thrown, the applicant rushed into the room and clutched PV2 WJR.  The roommate tried to separate them, PV2 WJR left the room, and the applicant followed him.  It was at this point that the roommate saw blood stains on the floor and left the room to get someone to clean it up.  He did not realize anyone was stabbed until the applicant came up the stairs, walked past him, and collapsed.

7.  PV2 WJR testified that on the night of the stabbing the applicant looked as though he had been drinking, came into his room, yelled at him, and slammed him up against the wall.  He (PV2 WJR) then got his knife because he was scared, but he had not planned on using it. 
8.  Army Regulation 600-33 (LOD Investigations) in effect at the time, dated 1 February 1975, prescribed the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provided standards and considerations used in determining LOD status.  It provided that after the report of investigation had been prepared it would be reviewed by the appointing, reviewing, and final approving authorities.  The appointing authority will approve or disapprove the findings of the IO and the reviewing authority will approve or disapprove the finding of the appointing authority.  The final approving authority will approve or disapprove the finding of the reviewing authority.

9.  Appendix C, rule 7 of Army Regulation 600-33 provided, in pertinent part, that injury incurred as the result of an act of wrongful aggression, or of voluntary participation in a fight or similar encounter, where one is at least equally at fault with his adversary in starting or continuing the altercation, is incurred not in LOD due to misconduct.  Provocative actions or language by the member used under the circumstances wherein a reasonable man would anticipate retaliation and injuries resulting therefrom are attributable to misconduct.  However, except as it may be warranted in the exercise of self-defense, for a member to persist in a fight or encounter after his adversary produces a dangerous weapon is to act in wanton disregard for safety and constitutes willful neglect.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was involved in an altercation with PV2 WJR and was stabbed by PV2 WJR.  Testimony by the applicant and PV2 WJR's roommate revealed the applicant started or continued the altercation in that he exchanged harsh words with PV2 WJR, pushed him against a wall, returned to PV2 WJR's room, and continued to exchange harsh words with him.  

2.  It appears that as evidence indicated the applicant was at least equally at fault in starting or continuing the altercation with PV2 WJR and based on all the facts of the case, the approving authority disapproved the LOD findings and determined that due to the applicant's misconduct and in accordance with appendix C, rule 7, of Army Regulation 600-33, the findings were not in the LOD.

3.  The evidence of record also shows the applicant's LOD investigation was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.  

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

5.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

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)                                         AR20110000379





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000379



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1