RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02981
            INDEX CODE:  108.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability  discharge  without  severance  pay  be  changed  to  a
disability retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the  records  to  be  in  error  or
unjust and the evidence submitted in support  of  the  appeal  are  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained in the
letters  prepared  by  the  appropriate  offices  of  the  Air  Force.
Accordingly, there is no need to recite these facts in this Record  of
Proceedings.

_________________________________________________________________

AIR STAFF EVALUATION:

The BCMR Medical Consultant reviewed this application and  recommended
denial.  A complete copy of the evaluation is at Exhibit C.

The Physical Disability Division, AFPC/DPPD reviewed this  application
and recommended denial.  A complete  copy  of  the  evaluation  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  15
Oct 99 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable injustice.  The evidence of record reveals  that
the applicant was involved in  a  single  car  accident  in  which  he
suffered a broken back with resulting paraplegia.  This  incident  was
determined to have resulted from the applicant’s own  misconduct  and,
therefore, not in line of duty.  The bases for this determination were
the applicant’s operation of a motor vehicle at a high rate  of  speed
in an impaired condition due to his ingestion  of  alcohol,  and,  his
failure to use a seat belt.  However, after a review of the  available
evidence, we believe that there is sufficient evidence to raise  doubt
whether  the  accident  occurred  as  a  result  of  the   applicant’s
intentional misconduct or willful neglect.  In this respect,  we  note
that while the applicant had probably  been  drinking,  there  was  no
credible evidence that he was legally intoxicated or that his  ability
to operate a motor vehicle safely was impaired.  While  there  appears
to be witnesses who have testified that they  observed  the  applicant
driving at a high rate of speed, we  note  that  their  accounts  were
merely an estimation of his speed.  Even if the applicant had exceeded
the posted speed limit, we  do  not  find  this,  in  and  of  itself,
sufficient to conclude that the  applicant  acted  in  a  reckless  or
wanton disregard for his safety or that of others.  In our view,  this
was just an exercise in poor judgment on the part of the applicant, as
with his decision to drink and drive.  The applicant contends that  he
was attempting to take his shirt off at the time of the incident.   If
his version of the event in question  is  to  be  believed,  it  could
reasonably explain why he was speeding  as  one  would  tend  to  lean
forward when  removing  a  shirt  and  in  so  doing  could  push  the
accelerator and speed up.  We also note that the highway on which  the
applicant was traveling was in the process of being resurfaced and had
been recently oiled and  graveled.   In  addition  to  the  above,  it
appears that the applicant was considered a  responsible,  dependable,
and believable airman.  According to his first sergeant, the applicant
was an outstanding individual.  The  investigating  officer  initially
found that the applicant’s injuries had  occurred  in  line  of  duty.
While he did not interview the applicant, as  required  by  regulation
and resulted in a determination that  the  investigation  was  legally
insufficient, based on  his  discussion  with  the  applicant’s  first
sergeant, he choose to believe the applicant’s version of  the  event.
In view of the above, and to remove the possibility of  an  injustice,
we believe that whether the applicant’s actions or inactions  amounted
to  gross  negligence  and  whether  that  gross  negligence  was  the
proximate cause of his injuries  should  be  resolved  in  his  favor.
Accordingly, we recommend that the applicant’s records be corrected as
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  The injuries he sustained in a vehicular accident  on  4 Aug
86 were found to be in line of duty (LOD), rather than not in LOD  due
to his own misconduct, and that all documents  pertaining  thereto  be
amended to reflect his injuries were in LOD.

      b.  On 8 Sep 87, he was found unfit to perform the duties of his
office, rank,  grade  or  rating  by  reason  of  physical  disability
incurred while entitled to receive basic pay; that  the  diagnosis  in
his case was status post 4 Aug 86 motor vehicle accident with fracture
dislocation of the T12-L1 vertebra with contusion of the spinal  cord.
Paraplegic with bowel and  bladder  paralysis,  complete  status  post
reduction with laminectomy and Harrington rod fixation of spine,  T10-
L3 with bone fusion, VASRD diagnostic code 5285, rated at 100 percent;
that the degree of impairment was permanent; that the  disability  was
not due  to  intentional  misconduct  or  willful  neglect;  that  the
disability was not incurred during a period of  unauthorized  absence;
and that the disability was not received in line of duty as  a  direct
result of armed conflict.

            c.  He was not discharged by reason of physical disability
without entitlement to disability severance pay on 9 Sep  87,  but  on
that date was released from active duty under the provisions of AFR 35-
4; and, was permanently retired by reason of  physical  disability  in
accordance with 10 USC 1201, effective 10 Sep 87.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 27 Jan 00, under the provisions of AFI 36-2603:

      Mr. Charles E. Bennett, Panel Chair
      Mr. Gregory H. Petkoff, Member
      Mr. Charlie E. Williams, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 20 Oct 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, Medical Consultant, dated 16 Aug 99.
     Exhibit D.  Letter, AFPC/DPPD, dated 30 Sep 99.
     Exhibit E.  Letter, SAF/MIBR, dated 15 Oct 99.




                                   CHARLES E. BENNETT
                                   Panel Chair







AFBCMR 98-02981




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that:

                 a.  The injuries he sustained in a vehicular accident
on 4 Aug 86 were found to be in line of duty (LOD), rather than not in
LOD due to his own misconduct, and that all documents pertaining
thereto be amended to reflect his injuries were in LOD.

                 b.  On 8 Sep 87, he was found unfit to perform the
duties of his office, rank, grade or rating by reason of physical
disability incurred while entitled to receive basic pay; that the
diagnosis in his case was status post 4 Aug 86 motor vehicle accident
with fracture dislocation of the T12-L1 vertebra with contusion of the
spinal cord.  Paraplegic with bowel and bladder paralysis, complete
status post reduction with laminectomy and Harrington rod fixation of
spine, T10-L3 with bone fusion, VASRD code 5285; rated at 100 percent;
that the degree of impairment was permanent; that the disability was
not due to intentional misconduct or willful neglect; that the
disability was not incurred during a period of unauthorized absence;
and that the disability was not received in line of duty as a direct
result of armed conflict.

                             c.  He was not discharged by reason of
physical disability without entitlement to disability severance pay on
9 Sep 87, but on that date was released from active duty under the
provisions of AFR 35-4; and, was permanently retired by reason of
physical disability in accordance with 10 USC 1201, effective 10 Sep
87.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency