MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            18 July 2000      
	DOCKET NUMBER:   AR1999030835

	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:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		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 1983 Line of Duty (LOD) investigation be corrected to reflect a finding of "In Line of Duty.”  He notes, in a self-authored statement dated 28 June 1999, that the findings of the investigation “is not accurate.”  He states he “never touched” the other soldier but rather he was “sucker punched in the eye” and was thrown down the steps.  He notes that he was trying to defend himself “by holding on to him [the other soldier] to stop him from hitting me anymore because I could not see.”  He states that he continues to have problems with his vision.  He submits no evidence in support of his statement but does submit a 1998 statement from a physician indicating the applicant has poor vision “in the right eye due to the chorioretinal scar that is consistent with an injury caused by blunt trauma that he sustained in a fist in the eye in 1983.”

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:

The applicant entered active duty on 21 August 1979.  On 16 November 1982 he was involved in an altercation with another soldier which resulted in a “choroidal rupture” to his right eye.

A formal LOD, completed on 20 April 1983 concluded that the applicant’s injury was “not in line of duty – due to own misconduct.”  The report notes that “both SM had ample opportunities to avoid the fight and were mutually to blame….”

Other than a copy of the DD Form 261 (Report of Investigation), provided by the applicant, other documents associated with the LOD are not in records available to the Board.

The applicant was released from active duty on 22 September 1983 at the completion of his enlistment contract.

Army Regulation 600-8-1 states that injury caused by wrongful aggression, or voluntarily taking part in a fight or like encounter, in which one is equally at fault in starting or continuing, is not in line of duty.  It is due to misconduct.  The regulation also notes that if an adverse finding is contemplated the service member will be notified, in writing, of the proposed adverse finding and provided a copy of the investigation and the supporting evidence.  The member will be given a reasonable opportunity to reply, in writing and to offer rebuttal.  Upon finalization of the LOD investigation the member may appeal, in writing, within 30 days after receipt of the notice of finding.  For appeals not submitted within this time limit, the reason for delay must be fully justified.

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 22 September 1983, the date the applicant was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 22 September 1986.

The application is dated 30 August 1999 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

___gdp__  ___eb___  __mvt___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999030835	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000718	
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.