IN THE CASE OF:	  

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20130019889 


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 record to show he was injured in the line of duty.

2.  The applicant states the Line of Duty Investigation (LODI) was not conducted in accordance with the governing regulation.  He knew immediately that the finding was in error but he was ordered to sign it.  Although it did not impact his military career, the Department of Veterans Affairs (VA) denied him disability benefits for the injury and the Board of Veterans Appeals upheld that decision.  He contends the LODI was improper or unjust because:

	a.  The governing regulation requires that an injury must be considered in-line of-duty unless that finding is refuted by substantial evidence of greater weight than supports any different conclusion.  The investigator and reviewing authority must consider witness behavior, the information they possessed, and their relationship to the matter. 

	b.  He had only drunk a half-liter of beer and was in no way intoxicated.  He believes, "PFC D---also had been drinking, and…he was intoxicated.  It was he who behaved irrationally and aggressively, striking me repeatedly in the face and head as I lay in bed, with a metal bunk adapter, after I merely asked him to repay the money…I did not 'pester' him.  The beating could have killed me – would have killed me …if I had not jumped out of bed and grabbed him around the neck.  This is the 'head lock' referred to…I only did it to prevent him from injuring me further…PFC D--- had a reputation for not paying his debts as his friend, PFC B-----, said…I knew PFC D---- was a 'hard payer'…"  PFC B----- was D----'s friend so his statement about who started the fight should not be accepted.

	c.  The regulation requires that facts should be supported by exhibits but there were no police reports or photos attached to his LODI.  The military police who interviewed him in the hospital said that pictures would be taken of his bloody bed.  Blood alcohol tests are supposed to be made when an incident apparently involves alcohol.  He was not given advanced notice of proposed adverse findings and given a chance to offer a rebuttal.  A Soldier may not be required to make a statement – a coerced statement is invalid.  He did not write the 19 September 1974 statement.  It was typed out and he was ordered to sign it.  He wrote. "Under Duress and added his initials intertwined with the last four numbers of my social security number (SSN)."  That addition is not shown on the form now filed in his record, which indicates that it was altered to remove the "Under Duress."  His statement is the only statement that is copied which is further evidence that it was altered.

	d.  He further notes that, according to regulation, an LODI normally starts when a DA Form 2173 (Statement of Medical Examination and Duty Status) is initiated at a medical facility.  This action starts a time-line that provides that the LODI is to be completed, reviewed and approved within 75 days.  In his case, it wasn't completed until 120 days after the fact, there was no explanation as to why it took so long, and no reviewing authority was noted. 

3.  The applicant provides copies of – 

* DD Form 261 (Report of Investigation of Line of Duty and Misconduct Status)
* DA Form 2173
* three sworn witness statements
* DA Form 3647-1 (Clinical Record Cover Sheet)
* Clinical Record
* buddy statements
* promotion orders
* performance reviews
* Board of Veterans' Appeals decision

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that he be acknowledged as the applicant's representative, that the Board consider the applicable regulations (not the ones the applicant submitted), and that the case be expedited because the applicant has a case before the U.S. Court of Appeals for Veterans Claims.
2.  Counsel states the applicant was struck in the head by a bunk adapter and his description of the incident and his arguments were previously laid out in detail in the application.  Counsel essentially repeats the applicant's contentions but cites the applicable paragraphs of Army Regulation 600-33 (LODI's) and Department of the Army Pamphlet 27-6 (Principles Governing Line of Duty and Misconduct Determinations in the Army) that were in effect in 1974.

3.  Counsel provides copies of – 

* Army Regulation 600-35
* Department of the Army Pamphlet 27-6

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 served in the Regular Army from July 1973 to July 1976.  Following initial training he served in Germany as an accounting specialist and was honorably separated in pay grade E-4 upon the expiration of his term of service.

3.  A DA Form 2173 shows that at 1405 hours on 4 May 1974 the applicant was admitted for treatment at the U.S. Army Hospital Augsburg, Germany for a fractured mandible.  The medical opinion was that the applicant had been injured in the line of duty and that the disability was temporary.  No blood alcohol test was performed.  

	a.  Item 30 (Details of the Accident) states, "Subject individual had been drinking and was pestering PFC D--- for repayment of a personal loan, both individuals became agitated and [the applicant] grabbed PFC D--- around the 


head."  "PFC D--- struck [the applicant] on the head an unknown number of times."  They stopped fighting and [the applicant] had to be ordered to receive medical treatment."

	b.  The DA Form 2173 is dated 10 May 1974 and is signed by Captain Larry E. J-----, the battery commander.

5.  Medical records show the applicant had a broken jaw which was set without surgery (closed reduction) and a broken tooth.  There were no descriptions of other wounds such as cuts, bruises, or abrasions. 

6.  On 9 May 1974, the applicant was granted 30 days of emergency leave due to the death of his brother.

7.  In a 19 September 1974 sworn statement by PFC D---, he states the applicant got out of bed and got in his face about repaying a loan.  "…I told him not to tell me what I better do and to stop pointing his finger in my face.  He then pushed me and continued to tell me…I told him… to be quiet because he had been drinking…[the applicant] grabbed me and started choking me in some kind of head lock…then I hit him."

8.  A 19 September 1974 sworn statement by the applicant indicates that he was laying in his bunk when PFC D---- came in, he (the applicant) casually rolled over and asked when he was going to be repaid.  PFC D--- warned the applicant not to pressure him about the money.  PFC D--- hit him three times while he was still lying in his bed.  The applicant got out of bed to protect himself.  The original of the statement is in the record and there is neither an "Under Dress" entry nor a monogram composed of the applicant's initials and the final four digits SSN intertwined. 

9.  A 23 October 1974 sworn statement by PFC B----- relates that the applicant had been drinking.  PFC D--- came in…(the applicant) got into PFC D---'s face about the money.  The applicant) acted like he wanted to fight.  Some licks were passed.  They were holding each other and the applicant hit PFC D--- and PFC D--- returned the lick by hitting him in the face.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  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 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 LODI was started late but the applicant's emergency leave was undoubtedly a factor in that delay.  The outcome does not appear to have been affected by the delay.

2.  There is no indication that the LODI process was prejudicial to the applicant's interest.

3.  Given that the applicant's original sworn statement makes no mention of him being attacked with a bunk adapter and he provided no medical records that reports he received wounds consistent with a person having been struck three times about the head and face with a piece of iron pipe, the applicant's current description of the incident is not consistent with his initial description.

4.  There is insufficient evidence to believe he was attacked in his bunk with an iron pipe as he currently relates.  The available evidence is not sufficient to change his record to show that he was injured in the line of duty.  

5.  Without verifiable evidence of the applicant's contentions, the presumption of regularity must be applied and the applicant's request should be denied.

6.  Further, almost 40 years have passed.  An arbitrary ruling in his favor, without knowing what evidence could have been discovered earlier in time, would cause prejudice to the Government.  Therefore, the doctrine of laches is invoked in his 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 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)                                         AR20130019889





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ABCMR Record of Proceedings (cont)                                         AR20130019889



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