BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110005280 


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 including an incident report.  He also requests his records be restored to show why he left the 42nd company, 4th Student Battalion.

2.  The applicant states his military records do not contain any documentation of an incident that occurred during his active duty service.  This incident involved another Soldier who pointed a loaded rifle at him.  The applicant feels that an injustice has been done to him by not having a record of this incident filed in his record.  He further contends that the soldier was never punished in any manner even though the applicant had reported the incident through his chain of command.

3.  The applicant also states that his records do not show why he left the 42nd Company, 4th student Battalion.  He wants his record restored to include this information.

4.  The applicant provides no additional documentation.  He indicated in his application that there were two attached documents, but did not identify them.  A 2-page typed letter and a 3-page hand written letter were received from the applicant.





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.  On 10 May 1974, the applicant enlisted in the Regular Army.

3.  Item 38 of the applicant's DA Form 20 (Enlisted Personnel Record) shows:

	a.  on 15 May 1974, he was assigned to Company C, 18th Battalion, 5th Brigade, Fort Knox, Kentucky, for enrollment into the Basic combat Training Course;

	b.  on a date not recorded, he departed Fort Knox in a permanent change of station status;

	c.  on 12 July 1974, he was assigned to the 42nd Company, 4th Student Battalion, (Airborne), Fort Benning, Georgia, for attendance at the Basic Airborne Course;

	d.  on 18 July 1974, he was reassigned to the 45th Company in the same student battalion for basic airborne training;

	e.  on 6 August 1974, he was reassigned to the 23rd Replacement Detachment, Trainee Student Battalion, Fort Benning;

	f.  on 16 August 1974, he departed Fort Benning en-route to Fort Polk, Louisiana;

	g.  on 19 August 1974, he was enrolled into advanced individual training (AIT) for in military occupational specialty 11C (Indirect Fire Infantryman).  He was subsequently assigned to Company A, 3rd Battalion, to complete this training; and

	h.  on 11 October 1974, he was awarded MOS 11C1O and departed Fort Polk en-route to Fort Bragg, North Carolina.

4.  The applicant's DA Form 2A (Personnel Qualification Record - Part 1) prepared on 15 January 1977 indicates:

	a.  on 5 November 1974, he was assigned to Headquarters and Headquarters Company, 1st Brigade, 24th Infantry Division, Fort Steward, Georgia;

	b.  on 21 January 1975, he was assigned to Company A, [battalion unknown], 24th Infantry Division; and

	c.  on 21 May 1975, he was assigned to Company A, 2nd Battalion, 19th Infantry Regiment.

5.  On 7 April 1976, the applicant was advanced to specialist four, pay grade E-4.

6.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates he was assigned the following duties while with the 19th Infantry Regiment:

	a.  21 May - 30 November 1975: Infantryman Indirect Fire Crewman;

	b.  1 December 1975 - 28 April 1976: Radio Telephone Operator;

	c.  29 April - 31 August 1976: Forward Observer (pay grade E-5 position); and

	d.  1 September 1976 - 8 May 1977: Team Leader (pay grade  E-5 position).

7.  On 9 May 1977, the applicant was released from active duty with an honorable characterization of service.  He had completed 3 years of creditable active duty service.

8.  The applicant provided a 2-page typed letter dated 6 March 2011.

	a.  He explained that in 1976, while Company A was cleaning weapons in garrison, another Soldier pointed his M16A1 rifle at his head at "point blank range."  The applicant immediately knocked the rifle away from his head and took it from the Soldier.  The applicant then announced to the squad that he was going to pull back the charging handle to see if there was a live round in the chamber.  Upon doing so, a live round was ejected from the chamber.  The applicant immediately notified the platoon sergeant, who in turn notified the company commander.
	b.  This incident was not recorded in his service records.  He feels this is a very sad injustice to him and now wants the incident placed on file.

	c.  The incident mentally sickened the applicant.  How a fellow military buddy, a so-called friend and team member could make such a serious mistake is ridiculous.  The applicant became emotionally distraught again when he found out that all the company commander was going to do was bar the Soldier from reenlistment.

	d.  Now the records are not straight and the Soldier was never barred from reenlistment and no disciplinary action was ever taken for the assault and threat. The soldier was never punished in any manner.

	e.  A technician at the National Personnel Records Center informed the applicant that he could submit a request to this Board for correction of his records and ask that the incident be included in his file.

9.  The applicant provided a 3-page hand written letter dated 14 March 2011.

	a.  He states his records do not show the reason he departed the 42nd Company, 4th Student Battalion (Airborne), located at Fort Benning, Georgia.

	b.  He wants the record restored and a copy of it provided to him.

10.  The legal "Doctrine of Laches" bars a claimant from receiving relief where the claimant's delay in pursuing the claim has operated to the prejudice of the opposing party.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by including a report of an incident that occurred in 1976 while he was on active duty.

2.  Other than the statement made by the applicant, there is no available documentary evidence about the incident described by the applicant for this Board to review.  However, if at the time any official reports were made by members of the chain of command those reports would have been filed in unit records and in the records of the offending Soldier.  The applicant, as the victim, would not necessarily have any documents placed in his records.


3.  The available records clearly show that the applicant was reassigned from 42nd Company to the 45th Company within the 4th Student Battalion on 18 July 1974.  The reason for this reassignment is not provided in the available records.  Both companies appear to have been airborne training units.  Furthermore, there is no evidence of record showing that the applicant ever completed this training or was awarded the Parachutist Badge.

4.  It has been approximately 34 years since the applicant was released from active duty.  Regrettably, due to the passage of time pertinent information has been lost or destroyed; therefore, favorable consideration of the applicant's request is barred by the doctrine of laches.

5.  The applicant is advised that a copy of this decisional document, along with his application will be filed in his Official Military Personnel File.  However, this would not be considered an official report of the incident.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110005280





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ABCMR Record of Proceedings (cont)                                         AR20110005280



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