BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140001018 


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 reconsideration of his earlier request for correction of his records to show his disability was incurred in line of duty versus not in line of duty. 

2.  The applicant states a report of investigation was completed in 1955.  That investigation found that he was in an absent without leave (AWOL) status when he was in an automobile accident.   He argued then, and he now argues, that he did have an Armed Forces Liberty Pass.  He was a victim of racism.  He is 86 years old and he served his country.  Due to the era of his military service, he feels his country abandoned him.  He also states he is partially paralyzed due to this injury.  He has no income other than a pension and a social security check.  He and his family have suffered and he hopes this injustice can be corrected. 

3.  The applicant provides a DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), a WD AGO Form 8-118 (Medical Disposition Board Proceedings for Officers), his DD Form 214 (Report of Separation from the Armed Forces of the United States), and his Honorable Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC81-11953, on 30 June 1982.  

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request was neither received within one year of the original Board's decision nor does it contain new evidence.  However, he provides a new argument related to racism – albeit, with no evidence.  As a one- time exception, his case will be reconsidered by the Board. 

3.  The applicant was inducted into the Army of the United States on 11 March 1954.  At the time of his separation, he held military occupational specialty    1729 (Combat Construction Specialist). 

4.  At the time of his incident, he was assigned to Company B, 92nd Armored Infantry Battalion, 6th Infantry Division, attending Noncommissioned Officer (NCO) Class Number 20 at Fort Leonard Wood, MO.

5.  On 10 March 1955, the applicant was a passenger in a car driven by another Soldier and was involved in a motor vehicle accident that resulted in severe injuries to himself and the death of the other Soldier.  As a result of that accident, an investigating officer (IO) was appointed to investigate the facts and circumstances surrounding the incident and determining the appropriate line of duty status.  

6.  The IO conducted a formal investigation that consisted of several interviews, sworn statements, a sketch of the accident, and an interview of the applicant:

	a.  By statement, dated 15 March 1955, the company commander of Company B, 92nd Armored Infantry Battalion, 6th Armored Division, Fort Leonard Wood, MO certified that the applicant was, at the time of the incident, on temporary duty with Headquarters and Headquarters Company, 15th Tank Battalion.

	b.  By statement, dated 21 March 1955, the company executive officer submitted a Duty and Status Certificate, wherein he certified the applicant, who was attending NCO School, was AWOL at the time his injuries were sustained.  His AWOL commenced at 0730 hours on 9 March 1955 and ended at 0130 hours on 10 March 1955.  He was absent from his scheduled duty at the NCO School. 
	
	c.  By sworn statement, a master sergeant certified that the applicant was a member of NCO Class Number 20.  He was AWOL from the first class at 0730 hours on 9 March 1955.  He was not present for any classes on 9 March 1955.  The next time he came to his (the author's) attention was on the morning of 10 March 1955 when the charge of quarters reported that he had a call the applicant was involved in an accident.  He (the master sergeant) had not authorized a pass for the applicant on the 9th or 10th of March.  
	d.  By sworn statement, dated 14 March 1955, the applicant stated that on 9 March 1955 he received permission from Private L-- to borrow his car.  Private Cr--- wanted to come with him so he and Private Cr---- caught the bus to the main gate where they picked up Private L--'s car.  They drove to a location where Private L--- met some friends and then to the town of Lebanon, MO.  About 0130 hours, the morning of 10 March, they were driving back to Fort Leonard Wood, MO.  Private Cr--- was driving and he (the applicant) was sleeping in the seat next to him.  While he was sleeping, the car hit another car and he found himself thrown clear of the vehicle onto the ground.  He stated that he had a pass but he did not know if Private Cr--- did.  He stated they were both drinking but not enough to be drunk.  

7.  His records contain a DD Form 261, dated 1 April 1955 that shows: 

	a.  At 0115 hours on 10 March 1955, 8 miles east of the town of Lebanon, MO, on Route 66, the applicant was a passenger of a civilian vehicle that collided with another civilian vehicle.  The vehicle was borrowed by the applicant from another Soldier and was driven by Private Cr--- who ran head on into a tractor trailer causing his death and a severe injury to the applicant.  The applicant sustained paraplegia - paralysis to the right lower half of the body.  

	b.  The applicant was AWOL from duty at Headquarters and Headquarters Company, 15th Medium Tank Battalion, from 0730 hours on 9 March 1955 until the time of the accident.  The applicant did have an Armed Forces Liberty Pass for normal off-duty hours but he had not signed out of his unit when he left post. 

	c.  The IO found the applicant's injury was "Not in Line of Duty-Not Due to Own Misconduct."  The appointing authority approved the findings on 22 March 1955 and the reviewing authority approved it on 26 March 1955.  

	d.  On 1 April 1955, the Adjutant General approved a finding on behalf of the Secretary of the Army indicating "Since [Applicant] was AWOL, it is held by the Secretary of the Army that his injury was incurred Not in Line of Duty – Not Due to Own Misconduct."  

8.  The applicant was taken to the U.S. Army Hospital at Fort Leonard Wood due to fractured vertebra and spinal cord compression.  He was then transferred to Walter Reed Army Medical Center in Washington, DC.

9.  On 15 June 1955, a medical board determined he was not medically qualified for service due to compression of spinal cord at T-8 by vertebral dislocation that was incurred on 10 March 1955, when he was riding as a passenger in a vehicle that was involved in an accident.  His injury was not in line of duty per the report of investigation prepared by the 6th Armored Division at Fort Leonard Wood, MO.  
10.  His DA Form 199 (Proceedings of Physical Evaluation Board (PEB)) shows he appeared before the PEB with his counsel on 22 June 1955.  The medical board recommended his separation from the service for disability under the provisions of Special Regulation 600-450 (Separation for Physical Disability).  

11.  He was honorably discharged from active duty on 22 August 1955.  His     DD Form 214 shows he was discharged in accordance with paragraph 10 of Army Regulation 600-450, with Separation Program Number 30 - disability with no entitlement to severance pay.  He completed 1 year, 5 months, and 11 days of active duty with 1 day of lost time.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was involved in a motor vehicle accident that resulted in the death of another Soldier and severe injuries to himself.  An IO conducted a formal investigation and determined he was AWOL at the time of the accident.  He was supposed to be attending NCO school but had not reported to classes.  An NCO confirmed his failure to attend and the company executive officer further certified it.  

2.  Although the incident was not due to his own misconduct, the incident was determined to be not in the line of duty.  As a result, when the PEB determined he was no longer fit for duty by reason of permanent disability and recommended his separation, he was not entitled to any compensation because his injuries were not in the line of duty.  

3.  The applicant contends he was on pass at the time.  Unfortunately, he failed to produce evidence that he was authorized a pass that night or during duty hours.  All the evidence in his records confirms he was AWOL, including the NCO’s statement, the executive officer’s statement, the IO’s determination, the appointing and reviewing authorities' review, and finally, the Adjutant General's approval.  

4.  He also contends the LOD resulting determination was based on racism but again failed to produce documentary evidence of such contention.  Although it is possible racism was present in some military units at the time, without evidence to establish a direct, causal relationship of the IO's findings to the applicant's alleged racism, there is an insufficient evidentiary basis to support his contention of racism. 


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 to amend the decision of the ABCMR set forth in Docket Number AC81-11953, dated 30 June 1982.



      _______ _   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)                                         AR20140001018





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ABCMR Record of Proceedings (cont)                                         AR20140001018



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