RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-01326

XXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His line of duty (LOD) determination be corrected to reflect his injury was “in line of duty.”

APPLICANT’S CONTENTIONS

The 22 Jul 88 LOD determination contains inaccurate information regarding the details of his motorcycle accident, to include the type of motorcycle and the rate of speed.  He was driving a Kawasaki 1000cc, not an 850cc.  Additionally, he was not traveling at more than 100 miles per hour.  His motorcycle recorded kilometers per hour, not miles per hour, so the speed that he was traveling was more likely around the 60 mile per hour range.  He had left a squadron function to go to the grocery store and the accident occurred on his way back to the function.  The LOD determination should be amended to reflect the accident occurred while attending a squadron function.  Finally, the LOD determination does not include what he thinks contributed to the accident.  It was dusk when the accident occurred, the road was being chip-sealed, and there were no posted warning signs.  In addition, the passenger on his motorcycle shifted his weight, which caused him to lose control of the bike.  The LOD determination prevents him from getting benefits from the Department of Veterans Affairs.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).

According to AF Form 348, Line of Duty Determination, on 11 Jun 88, the applicant was involved in a motorcycle accident.  He was operating the motorcycle at a high rate of speed, approximately 100+, when he lost control of his Kawasaki 850cc.  He suffered two broken legs and a ruptured spleen.  On 22 Jul 88, a medical officer recommended a “not in line of duty” finding.  On 27 Jul 88, the commander recommended a formal investigation; however, the applicant’s military personnel records do not contain the final determination of the formal investigation.

On 15 Sep 93, the applicant was honorably discharged and credited with 11 years, 5 months, and 24 days of total active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

AFPC/JA recommends denying the application.  The applicant’s records contain references to an LOD investigation and determination, but the records do not contain any actual LOD forms.  In addition, the applicant did not meet the time limit set by AFI 36-2603, Air Force Board for Correction of Military Records (AFBCMR), or show why it is in the interest of justice to waive the time limit in his case.  Statutes of limitation are enacted in recognition that passage of time often results in lost or destroyed records and faded memories, making it difficult to adjudicate cases several years later.  While the AFBCMR may waive the three-year time limit in the interest of justice, AFPC/JA does not believe the facts warrant such action in this case.  The documentation provided by the applicant did not present any evidence showing the finding of “not in line of duty” was unjust or in error.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 May 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.   After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-01326 in Executive Session on 17 Jun 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, postmarked 8 Jan 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/JA, dated 4 May 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 7 May 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.