IN THE CASE OF:	  

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130005718 


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 a Line of Duty (LOD) investigation be conducted regarding injuries he sustained in a 1986 motorcycle accident. 

2.  The applicant states:

	a.  An LOD investigation for his accident on 2 June 1986 should have been conducted based on his enlistment in the South Dakota Army National Guard (SDARNG).  He was traveling from his home to the National Guard Armory in Parkston, SD when the accident occurred.  He was reporting to the Armory to pick up paperwork to attend advanced individual training (AIT) before his ship date of 5 June 1986.  Because of his injuries, he was considered medically unfit and was discharged from the SDARNG without an LOD investigation. 

	b.  As of today, no LOD has been conducted for his injuries involving the accident on 2 June 1986.    

	c.  He cannot apply for Department of Veterans Affairs benefits without an LOD investigation determination.

3.  The applicant provides:

* service personnel records
* hospital and doctor records/notes


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 SDARNG on 9 February 1985 for a period of 
8 years under the split training option.  He completed basic combat training in July 1985.  

3.  He provides medical records which show he was involved in a motorcycle accident on 2 June 1986 and he injured his back, left foot, and left elbow.  

4.  The available records do not contain an LOD investigation.

5.  On 15 August 1986, he was honorably discharged from the SDARNG for being medically unfit for retention.

6.  A staff advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau, in the processing of this case who recommends approval of the applicant's request for the following reasons:

	a.  Army Regulation 600-33 (LOD Investigations), in effect at the time, applied to members of the ARNG in a federalized status, or while attending a service school, and members of the Army Reserve on active duty for training, inactive duty training, initial active duty training, annual training, and full-time training duty.  The applicant was not technically in any of the categories, but he was instructed by the unit to go to the unit for administrative purposes.  By following the instructions of his commander, he should be considered acting in the LOD while complying with these instructions.  Travelling from his home of record to the unit is part of complying with the instructions.



	b.  The applicant was en route to his National Guard unit for official purposes.  The laws and regulations do not address such circumstances where a Soldier is instructed to appear at the unit during a time he is not going there on orders, or for a specific training event.  His trip to the unit was prearranged by his commander in preparation to go to AIT a few days later.  Since the travelling was part of complying with his instructions, an LOD investigation should have been done at that time.

	c.  Because the applicant enlisted as an alternative (split) training option, he was required to have a physical examination prior to going to the phase II training, which his orders indicate a report date of four days after the date of his accident.  Army Regulation 40-501 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 10-17d states that split trainees, prior to departure for phase II, must undergo a physical inspection.  For ARNG members who do not process through a Military Entrance Processing Station, the physical inspection must be accomplished by ARNG Medical Corps officers or civilian physicians.  It is unfair that a Soldier required to go through this medical processing is not considered in the LOD while traveling to this required processing.      

	d.  Currently, if an LOD investigation is initiated, a Soldier is entitled to medical care during the investigation and possibly medical care after separation in accordance with Army Regulation 135-381 (Incapacitation on Reserve Component Soldiers), paragraph 1-6i, which states members are authorized medical/dental treatment while the LOD investigation is ongoing, provided the military medical support office pre-approves the treatment.  The LOD investigation determination will determine eligibility for continued medical/dental care.  The applicant would have received treatment while the LOD investigation was ongoing and, depending on the outcome, may have been extended further medical benefits.

	e.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation) states the Commander, Medical Treatment Facility will (a) provide a thorough and prompt evaluation when a Soldier's medical condition becomes questionable in respect to physical ability to perform duty; (b) appoint a Physical Evaluation Board (PEB) Liaison Officer to counsel Soldiers undergoing physical disability processing; and (c) ensure medical evaluation board proceedings referred to the PEB are complete, accurate, and fully documented.  The current process in place needs to be used for the applicant rather than any other previous process.

	f.  That office recommends the applicant's injuries be determined "In Line of Duty" and he be issued invitational travel orders from the state surgeon for the purpose of being evaluated by the Medical Evaluation Board process.

	g.  The SDARNG does not concur with this recommendation.  The SDARNG does not consider the applicant to have been in a duty status at the time of the incident.  

7.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond within the given time frame.

8.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with the lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a LOD investigation be conducted regarding injuries he sustained in a 1986 motorcycle accident.  

2.  Notwithstanding the favorable advisory opinion recommendation, it is now almost 28 years since his motorcycle accident and discharge from the SDARNG and the doctrine of laches is invoked in his case.  At this point in time, there is no way to conduct a conclusive LOD investigation of the facts and circumstances of his case.  Therefore, there is an insufficient evidentiary 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)                                         AR20130005718



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ABCMR Record of Proceedings (cont)                                         AR20130005718



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