IN THE CASE OF:  	  

	BOARD DATE:  14 May 2015	  

	DOCKET NUMBER:  AR20140017409

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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by removing from Item 32 (Remarks): "8 days lost time under 10 USC 972 from 8 NOV 65 thru 
14 NOV 65."

2.  The applicant states he was not absent without leave (AWOL) for 8 days.  Rather, he was on pass for 7 days from 8 to 14 November 1965.  He was physically unable to complete his 3-year term of service because of the automobile accident on 14 November 1965.  Subsequently, he was honorably discharged due to his medical condition. He wants the statement removed from his DD Form 214 so he can obtain service-connected medical benefits from the Department of Veterans Affairs (VA) for his traumatic brain injury.

3.  The applicant provides copies of:

* DeKalb County Accident Report, dated 14 November 1965
* DD Form 214
* Special Orders Number 122, Fort Sheridan, IL, dated 15 June 1966
* VA Form 21-4176 (Report of Accidental Injury in Support of Claim for Compensation or Pension, dated 28 April 1970
* VA Rating Decision, dated 19 August 2014
* VA Form 21-4138 (Statement in Support of Claim) dated 15 October 2014



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.  A DD Form 4 (Enlistment Record – Armed Forces of the United States) states that the applicant enlisted in the Regular Army on 19 July 1965 for 3 years.

3.  On 26 July 1965, the applicant commenced basic combat training at Fort Knox, Kentucky.  He completed this course on or about 18 September 1965.

4.  On or about 1 October 1965, the applicant commenced advanced individual training at Fort Dix, New Jersey.

5.  A DeKalb County accident report, dated 14 November 1965, as provided by the applicant, states that he was a passenger in car number 1 that failed to obey a stop sign and ran through an intersection and hit the right side of car number 2.  The report identified the applicant as a member of the U.S. Army.

6.  A DA Form 188 (Extract Copy of Morning Report), dated 10 December 1965, indicates the following duty status changes pertaining to the applicant:

* Duty to AWOL 0600 hours, 8 November 1965
* AWOL to absent sick (injury) automobile accident, Great Lakes Naval Hospital, effective 15 November 1965, Line of Duty undetermined

7.  A DD Form 261 (Report of Investigation – Line of Duty (LOD) and Misconduct Status), dated 12 January 1966.  This report states:

     a.  The applicant was AWOL from 0600 hours, 8 November to 1800 hours, 
15 November 1965.  At about 2048 hours, 14 November 1965, he was a passenger in a vehicle which had apparently run a stop sign and hit another vehicle.
     b.  The applicant was taken to the Sandwich Community Hospital.  On 
15 November 1965, he was transferred to the Great Lakes Naval Hospital.

     c.  The applicant had suffered a cerebral concussion resulting in his being comatose and unconscious for a period of time.

8.  A DA Form 20 (Enlisted Qualification Record) indicates in Item 44 (Time Lost) that he was AWOL for 8 days from 8 to 14 November 1965.

9.  On 16 June 1966, the applicant was discharged due to his medical condition.  His DD Form 214 shows:

	a.  his characterization of service was honorable;

	b.  he completed 10 months and 20 days of creditable active duty service; and

	c.  he had 8 days of lost time under Title 10 U. S. Code 972 from 8 to 
14 November 1965.

10.  A VA Form 21-4176, dated 28 April 1970, as provided by the applicant, indicates that the applicant stated he was on an authorized pass at the time of the accident.

11.  A VA rating decision, dated 19 August 2014, as provided by the applicant, states that he was denied service-connection for chronic brain syndrome secondary to trauma.  The denial was based on the LOD report that stated he was AWOL at the time of his accident and on the lost time entry on his DD Form 214.

12.  A VA Form 21-4138, dated 15 October 2014, as provided by a former Soldier who claims to have been in the same accident with the applicant, simply states that both he and the applicant were on pass at the time.

13.  Army Regulation 635-5 (Separation Documents), as then in effect, provided detailed instructions for completing separation documents, including the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected by removing from Item 32 the entry showing he had 8 days of lost time from 8 to 
14 November 1965.

2.  The applicant argues that he was on an approved pass at the time of the accident.  However, the available evidence of record clearly shows he was AWOL for a 7-day period from 8 to 14 November 1965.  The applicant has provided a copy of his VA claim form dated in 1970 wherein he states he was on pass at the time of his accident.  This is not sufficiently convincing to overcome the evidence of record.

3.  The statement provided in support of the applicant’s request is unconvincing when compared to the evidence of record.  The author of the statement may have been on an authorized pass, but he makes no effort to explain how or why he believes the applicant shared the same duty status.

4.  There is no evidence of injustice in what the Army did in the applicant’s case.  However, there was an error in the actual number of days he was AWOL.

5.  In that the applicant is requesting removal of the entire period of AWOL from his DD Form 214, and has not requested a correction of the actual number of days, it would be inappropriate to make any changes to the subject entry in the Remarks block of this form.

6.  In view of the above, 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20140017409



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