RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 NOVEMBER 2005 DOCKET NUMBER: AR20050001774 I certify that hereinafter is recorded the true and complete record of the proceedings 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: Mr. James Anderholm Chairperson Mr. Thomas O’Shaughnessy Member Ms. Carol Kornhoff Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that a 12 November 1976 sworn statement be expunged from his Official Military Personnel File (OMPF). 2. The applicant states that he never spoke to a Major “M.” He never made such a statement. The content in the statement is embarrassing to him, his family, his country, and his God. 3. The applicant provides a copy of the above-mentioned statement, and a Department of Veterans Affairs (VA) Form 21-4138 (JF) (Statement in Support of Claim) in which he states that the contents of the interrogation are totally false. He received this (the statement) on 1 July 2005. He states that he had never seen or heard of the statement before this recent time frame. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 30 November 1979. The application submitted in this case is dated 10 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted in the Army for 3 years on 19 June 1974. He was trained as an electrician and assigned to Fort Benning, Georgia. 4. The sworn statement that he provides shows that he and other Soldiers were part of a work detail on 9 November 1976 on Grandstaff Range. A Soldier found a piece of metal on the ground and they were discussing whether it was a dud or not. After eating, he had the piece of metal and threw it at one of the targets. The metal missed the target and something exploded. One of the Soldiers stated that he was hit. As he walked, he saw some blood on his arm and knew that he must have been hit also. He was put in an ambulance and sent to the hospital. 5. The statement shows that the applicant’s name was on the statement, indicating that he made the statement. The questions asked the applicant were from a Major “M,” who witnessed the statement. At the end of the statement the applicant affixed his signature. He initialed the first page of the statement. The affidavit shows that the statement was subscribed and sworn to before a Captain “L,” a Medical Service Corps officer at Martin Army Hospital at Fort Benning on 12 November 1976, and that the applicant signed it, attesting to its authenticity. 6. A 28 April 1977 narrative summary for a Medical Evaluation Board (MEB) shows that the examining physician, commenting on the applicant’s medical history, stated that the applicant was injured on 9 November 1976, and the applicant stated to him (the doctor) that “he was throwing a pork chop bone to discard it when it inadvertently hit a ‘dud’ shell which he did not realize was in the area. This shell exploded and caused him multiple fragment wounds (as I recall from reading the Line of Duty Determination Report, the patient stated that he was throwing a bolt to discard them when they inadvertently hit the shell fragment which he did not see because of tall grass).” 7. The applicant underwent MEB and Physical Evaluation Board (PEB) proceedings, and on 30 September 1977 was placed on the temporary disability retired list (TDRL) with a 60 percent disability rating. He was removed from the TDRL on 30 November 1979 and permanently retired on 1 December 1979 with a 70 percent disability rating. DISCUSSION AND CONCLUSIONS: 1. The evidence shows that the applicant made a sworn statement, the statement that he provides with his application, that he initialed the first page of the statement, that he affixed his signature at the end of the statement, and that the statement was subscribed and sworn to before by an officer authorized by law to administer oaths. He signed the statement, and it was witnessed by the officer who questioned him. 2. There is no evidence and the applicant has not provided any to cast doubt on the authenticity of the statement. He made the statement and swore to it. There is no error or injustice done to him. 3. Accordingly, his request to have the statement expunged from his OMPF is not granted. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 November 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 November 1982. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___JA___ __TO ___ __CK ___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____ James Anderholm_______ CHAIRPERSON INDEX CASE ID AR20050001774 SUFFIX RECON YYYYMMDD DATE BOARDED 20051101 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. 134.00 2. 3. 4. 5. 6.