IN THE CASE OF: BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150003441 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 previous requests to show he was injured in the line of duty (ILOD) instead of not ILOD on 26 July 1958. 2. As a new issue, he requests award of benefits due to a U.S. Soldier injured ILOD. 3. The applicant states: a. The investigation was completed 10 days after the accident, between 7 and 8 August 1958. The determination should be changed in the interest of justice and because he had permission to leave the post. As indicated in the documentation he is providing, he requested and received verbal permission on 25 July 1958 to go to Aschaffenburg, Germany, to meet with Lieutenant (LT) Pxxxxx regarding a legal matter. The verbal permission was granted by First Sergeant (1SG) Hxxxxx R. Dxxxxxx. He also received permission for the time off from his section chief. b. Over the last 57 years he has attempted to right this wrong using military channels, Members of Congress (MOC), the Disabled American Veterans, the American Legion, the Red Cross, and the Army records center in St. Louis, MO. The Army records center advised him that they would send him the records. He never received the records. He also attempted to obtain an attorney, but could never afford the retainer they required. One attorney stated he would take the case on contingency. He does not believe a U.S. Soldier should have to fight for honesty, justice, and his rights for 57 years. 3. The applicant provides copies of the following: * DD Form 261 (Report of Investigation) * Investigating Officer (IO) Statement * AE Form 2732 (Certificate of Medical Officer or Physician) * DA Form 19-24 (Statement) from Staff Sergeant (SSG) Dxxxxxx * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * two notarized statements * two letters to a MOC and himself CONSIDERATION OF EVIDENCE: 1. With respect to correction of the applicant's military records to show he was injured ILOD on 26 July 1958: a. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC59-00526C on 27 May 1959 and on 6 December 1995. b. Army Regulation 15-185 (ABCMR), paragraph 2-15b, governs requests for reconsideration of correction of military record and allows an applicant to request reconsideration for an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered. As a result, his request for reconsideration for correction of his military records to show he was injured ILOD will not be discussed further in this Record of Proceedings. 2. As a new issue, he is requesting the award of benefits due to a Soldier injured ILOD. This will be considered by the Board. 3. The applicant enlisted in the Regular Army (RA) on 4 April 1956 for 3 years. He completed training and was awarded military occupational specialty 301.20 (Anti-Aircraft Artillery Control Electrical Repairman). 4. His records contain the following: a. A DD Form 261, dated 30 July 1958, in which the IO stated, in effect: * The applicant went to SSG Dxxxxxx, the company's 1SG, on 25 July 1958, and stated he desired council for his board under the provisions of Army Regulation 635-208 (Discharge – Undesirable Habits and Traits of Character). SSG Dxxxxxx advised the applicant he would be given time to obtain council. The applicant left the unit a little after 1300 hours. The applicant had no pass or authorization to be absent without leave (AWOL) from his unit. Had he requested a pass he would probably had been given one. The applicant was involved in an accident on 26 July 1958 and was admitted to the hospital. * The applicant was diagnosed with a compound fracture of the tibia and fibula with deep lacerations to the left leg. The form indicated he was in an AWOL status and intentional misconduct or neglect was not the proximate cause of the accident. The findings were "Not ILOD – Not Due To Own Misconduct." The form also indicated the applicant was provided a copy of the report. b. An IO Statement, dated 30 July 1958, in which the IO stated on 30 July 1958 the applicant was advised of his rights and he declined to make an oral or written statement. c. An AE Form 2732, dated 30 July 1958, showing the applicant was admitted to the hospital on 26 July 1958 and was diagnosed with a compound fracture of the tibia and fibula with deep lacerations to the left leg. The physician opined that the injury was likely to result in partial or permanent disability. d. A DA Form 19-24, dated 30 July 1958, in which SSG Dxxxxxx stated on 25 July 1958, at approximately 0900 hours, he presented the applicant with a letter which informed him that he was to appear before an Army Regulation 635-208 board. The applicant was required to acknowledge receipt of the case and to state whether he desired council or not. The applicant stated at that time he would not require council. He advised the applicant to return at 1300 hours to sign the endorsement. The applicant returned at approximately 1300 hours and stated he had changed his mind and he desired council. He then advised the applicant that he would be given time to obtain council. The applicant did not request his permission to go any place to obtain council. e. A Duty and Status Certificate, dated 30 July 1958, in which the applicant's company commander certified the applicant was AWOL at the time of the injury. f. A DD Form 481, dated 19 August 1958, showing the applicant's left foot was amputated on 28 July 1958. g. A LOD Status memorandum, dated 3 September 1958, in which The Adjutant General (TAG) approved the final determination pertaining to the applicant's injuries incurred on 26 July 1958 to be "Not ILOD – Not Due to Own Misconduct." 5. On 24 February 1959, a Medical Board convened and determined the applicant was physically not qualified for military duty. He was referred to a Physical Evaluation Board (PEB). 6. On 26 February 1959, an informal PEB convened and determined the applicant was physically unfit by reason of permanent disability. The PEB recommended his separation without severance pay. The proceedings indicated on 3 September 1958, per TAG letter, the applicant's injuries occurred "Not ILOD, Not Due To Own Misconduct." 7. The applicant was honorably discharged on 12 March 1959, under the provisions of Army Regulation 635-40A (Physical Evaluation for Retention, Separation or Retirement for Physical Disability), paragraph 6, by reason of physical disability without severance pay. He was credited with completing 2 years, 10 months, and 16 days of net active service and had 23 days of time lost. 8. He provided copies of two letters on: * 22 January 2015 - in which a MOC was advised a DD Form1149 36-40(Application for Correction of Military Record) was required to request a correction of military records * 29 January 2015 – in which he was provided a letter initiating the change of record process 9. Army Regulation 635-40A, in effect at the time, set the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating. The regulation stated in: a. Paragraph 2-4 – There are two categories of LOD determinations: (1) whether the disability is the result of the member's intentional misconduct or willful neglect or was incurred during a period of unauthorized absence (AWOL) and (2) whether the disability was incurred or aggravated while the member was entitled to basic pay. b. Paragraph 6 – When it was determined that the member had incurred a physical disability which rendered him unfit and which was determined to have been incurred during a period of unauthorized absence, such member would be discharged without entitlement to any benefits provided by Army Regulation 635-40A. 10. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent. 11. Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability ILOD while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 12. Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character. When separation for unfitness was warranted, an undesirable discharge was normally issued. Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. DISCUSSION AND CONCLUSIONS: 1. The applicant sustained injuries during his period of active duty which resulted in the amputation of his left foot. At the time of the incident, it was determined he in was in an AWOL status. On 3 September 1958, TAG approved the determination that his injuries were "Not ILOD, Not Due to Own Misconduct." An MEB and PEB found him physically unfit for military duty and he was recommended for discharge. He was discharged accordingly on 12 March 1959. 2. By regulation, in effect at the time, any member who was determined to be unfit and any injury which incurred during a period of AWOL would be discharged without disability benefits provided by the regulation. 3. He did not provide sufficient evidence and his records contain none showing his "Not ILOD" determination was a direct result of error or injustice. Without evidence to the contrary, it appears the final LOD determination was accomplished with applicable regulations in effect at the time and with no procedural errors which would tend to jeopardize his rights. 4. The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits. BOARD VOTE: ________ _______ ________ GRANT FULL RELIEF ________ ________ _______ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 AC59-00526C dated 6 December 1995. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief as it pertains to the new issues. As a result, the Board recommends denial of so much of the application that pertains to awarding him any benefits due an ILOD injured Soldier. ___________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) AR20150003441 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003441 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1