MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            5 December 2000   
	DOCKET NUMBER:   AR2000039722

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his 1961 line of duty investigation be corrected to reflect a finding of in line of duty.  He states that he “was not negligent nor performing willful misconduct” at the time of a motor vehicle accident in January 1961.  In support of his request he submits a 1996 statement from one of the individuals that was in the vehicle.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He initially entered active duty on 9 October 1958 and was discharged on 
7 October 1960.  He returned to active duty on 9 November 1960.

On 31 January 1961, while on pass from Fort Campbell, Kentucky, the applicant was involved in a motor vehicle accident.  The injuries from the accident ultimately resulted in the applicant’s separation from active duty by reason of disability.

Information contained in the line of duty investigation notes that the applicant and four friends were riding in a vehicle being driven by the applicant.  Two of the statements submitted as part of the original investigation indicated the applicant was driving in the center of the road, at night, at a high rate of speed (in excess of 100 miles per-hour in a 55 mile per-hour zone) when he met an oncoming vehicle.

The officer conducting the line of duty investigation initially concluded that the applicant’s accident was not the result of his own misconduct but ultimately amended his finding to conclude the accident was not in line of duty due to the applicant’s own misconduct.  The investigation was approved “by order of the Secretary of the Army” on 10 March 1961.

In October 1961 an informal Physical Evaluation Board (PEB) concluded that the applicant was no longer fit for duty and recommended that he be discharged without disability benefits.  The Board found that the applicant’s disability “was due to misconduct.”  On 6 October 1961 the applicant concurred with the findings and recommendation of his informal Physical Evaluation Board and waived his right to a formal hearing.  

The applicant was discharged under honorable conditions on 25 October 1961.

The statement submitted in support of the applicant’s request is dated 10 June 1996 and witnessed by an individual bearing the same last name as the applicant.  The author of the statement, a passenger in the applicant’s vehicle at the time of the accident, noted that she remembers “telling [the applicant] to slow down that there was a bad curve ahead” and the next thing she “saw someone coming over the back seat of the car and hitting [the applicant] in the head with a coke bottle.”  She states she believes the two men in the back seat of the car thought the applicant “had money on him since he was on furlow from the Army.” Neither the author nor the applicant provides evidence which corroborates her statement.

In 1962 the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.  In the applicant’s petition to that Board he made no mention that he believed that the line of duty investigation was in error.

Army Regulation 600-8-4 states that injury because of erratic or reckless conduct without regard for personal safety or the safety of others is not in the line of duty. It is due to misconduct.  This rule has its chief application in the operation of a vehicle, but may be applied with any deliberate conduct, which risks the safety of self or others.  “Thrill” or “dare-devil” type activities also are examples in which this rule may be applied.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 October 1961, the date the applicant was discharged from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 25 October 1964.

The application is dated 14 March 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__amc___  ___alr__  ___jam__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000039722	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.