MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           2 August 2001                  
	DOCKET NUMBER:   AR2001053309

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John P. Infante		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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 discharge for physical unfitness without severance pay be corrected to placement on the Permanent Disability Retired List (PDRL) (sic).

APPLICANT STATES:  He was unaware of his entitlement to a retired status as a result of his injury.

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

He enlisted in the Regular Army on 28 December 1964, was awarded the military occupational specialty of light weapons infantryman, and was promoted to pay grade E-3.

While stationed in Korea, on 20 January 1966 the applicant was hunting.  At that time he entered into a mine field and stepped on a land mine, resulting in the amputation of his foot.  A line of duty investigation was conducted on the injury with the investigating officer recommending it be considered to have been incurred in line of duty.  However, that recommendation was not accepted by the approving authority, who changed it to not in line of duty, due to own misconduct.  The approving authority opined that the applicant “. . . was obviously aware of the danger involved in entering the mine field, yet he deliberately walked around in the mined area without regard for the safety of himself or his companion.  Injury incurred as the result of erratic or reckless conduct, or other deliberate course of conduct without regard for personal safety or the safety of others is incurred not in line of duty and due to misconduct.”

On 19 May 1966 a formal Physical Evaluation Board convened and determined that the applicant was physically unfit and recommended that he be discharged without severance pay due to his disability being determined not to have been incurred in line of duty.

The PEB’s recommendation was approved and the applicant was honorably discharged on 17 June 1966.

Army Regulation 600-8-1, paragraph 39-5, states, in part, that an injury proximately caused by a soldier’s intentional misconduct or willful negligence is considered not in line of duty, due to own misconduct.

Title 10 USC §1207 states that a soldier who is determined unfit to perform the duties of his office, grade, rank or rating, and that resulted from his intentional misconduct or willful neglect or was incurred during a period of unauthorized absence, shall be separated from his armed force without entitlement to any benefits under this chapter.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  It appears from the statement made by the line of duty convening authority that the applicant was hunting in a known and marked mine field.  This would appear reasonable considering that the date of the incident.  The fact that the applicant was in a known and marked mine field would certainly be considered a blatant disregard for his own safety and the safety of his companion.  As such, the finding of not in line of duty, due to own misconduct, was well founded.

2.  Since the Board finds no basis for changing the applicant’s line of duty determination, there is no reason to change his discharge without severance pay to placement on the retired list due to physical disability.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rjw___  ____bje__  ____jpi__  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010802	
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.		
2.		
3.		
4.		
5.		
6.