RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: 99-00280
                 INDEX CODE 108.03
                 COUNSEL:  DAV

                 HEARING DESIRED:  No


APPLICANT REQUESTS THAT:

The Line of Duty (LOD) investigation and report reflect that  she  was
not the driver of the vehicle involved in  an  accident  on  1 January
1996 and the injuries she sustained are in the LOD.

APPLICANT CONTENDS THAT:

The LOD is in error. Her ex-husband was the driver of the  vehicle  in
which she was injured. She was the only person left in the  automobile
as her ex-husband  removed  himself  from  the  accident  scene.   She
provides medical records that she believes indicate her ex-husband was
treated for injuries consistent with a driver of an  automobile  in  a
head-on collision. Also provided is an audiotape of the XXXXXXX County
Metropolitan court proceedings concerning the civilian  criminal  case
against the applicant.

Medical records provided by the applicant reflect that her  ex-husband
arrived  by  ambulance  and  was  subsequently  admitted  to   XXXXXXX
Healthcare System on an emergency basis at  0600  on  1 January  1996.
Diagnoses were splenetic rupture, pulmonary and cardiac contusion, and
rib fractures. He underwent a splenectomy on 2 January  1996  and  was
released from the hospital  on  9  January  1996.   The  records  also
indicate that the injuries were sustained in a motor vehicle  accident
and that he was the possible driver. He had related that he  drank  “a
12-pack” and was amnestic for the event; i.e., he was  unsure  whether
he was the driver or a passenger and the ambulance  records  were  not
available. Also provided by the applicant is a 15 March 1996 “State of
New Mexico Uniform Accident Report,  Supplemental  Diagram/Narrative,”
which  has  her  ex-husband’s  name  and  social  security  number.  A
handwritten note states “I need to be listed on Vehicle  No.  2  as  a
passenger, for insurance proposes [sic].”

A copy of applicant's complete submission,  with  attachments,  is  at
Exhibit A.

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 23 March 1988 for a
period of six years. She reenlisted for three years on 20 April  1994.
She was reduced from airman first class (A1C) to airman  effective  23
October 1989 by Article 15 action for issuing two bad checks.
During the period in question, she was a SRA assigned to the  Phillips
Laboratory (PL) at XXXXXX, as an acquisition specialist.

On 1 February 1996, an LOD investigating officer  (IO)  was  appointed
for the applicant’s accident on 1 January 1996. The IO concluded that:
the applicant was obviously intoxicated while driving; because of this
she either did not see or disregarded a red  light  and  crashed  into
another vehicle; her decision to drive  while  severely  impaired  was
intentional misconduct and the proximate cause of  the  accident;  and
her injuries were not in the  LOD  due  to  her  own  misconduct.  The
following information was extracted from  the  15  February  1996  LOD
Report of Investigation (ROI):

      -- The applicant was involved in a head-on collision around 0130
on 1 Jan 96. Her vehicle was proceeding northbound  on  San  Mateo.  A
Jeep was waiting to turn left from southbound San Mateo  to  eastbound
Academy. At the green light, the Jeep driver proceeded  to  turn  left
onto eastbound Academy. The applicant’s car went through a light  that
had been red for at least 30 seconds and collided with the  Jeep.  The
Jeep driver sustained minor injuries. The applicant  was  unrestrained
at the time of the collision. She was treated for closed head  injury,
broken leg, broken shoulder bone, and two broken bones in the arms  at
the University of NM hospital at 0200. She had a blood alcohol content
of .218 at 0220 and .14 at 0405.

      -- The  Albuquerque  Police  Department  report  indicated   the
applicant was driving and appeared intoxicated.

      -- The IO was unable to locate the ex-husband to  interview  him
regarding the crash; the IO indicated that the ex-husband  was  riding
in the passenger seat at the time of the crash.

      -- The XXXth Security Police Desk Blotter for 1 Jan 96 indicates
that neither their office nor the University of NM Intensive Care Unit
could confirm whether the applicant or her ex-husband was driving. The
ex-husband was transported  to  St.  Joseph’s  hospital  with  unknown
injuries.

The applicant was discharged from the hospital on 27 January 1996. The
discharge entry indicates the applicant  had  been  intoxicated  while
driving and had a prolonged extraction.

The LOD ROI was reviewed by the XXX Air Base Wing (XXX ABW)  Assistant
Staff Judge Advocate (SJA) on 13 March  1996.  The  ROI  determination
that the  applicant’s  misconduct  was  the  proximate  cause  of  her
injuries and that her injuries were not in the LOD was  found  legally
sufficient. The PL commander initialed off on the review on  19  March
1996 and concurred with the LOD findings on 21 March 1996.

On 13 May 1996, the applicant  was  non-recommended  for  reenlistment
because of declining job performance, unprofessionalism, and  repeated
counselings. The unit commander stated that “her continued involvement
with   alcohol   has   seriously   detracted   from   her   level   of
professionalism. The Air Force has gone to lengths to  assist  her  in
conquering this problem but it has gone to no avail.”   The  applicant
indicated she was going to appeal the non-recommendation.  On  7  June
1996, she was again non-recommended for the same reasons. Although she
indicated she would appeal, it was not received by the appeal date. On
30 December 1996, she  received  a  suspended  reduction  from  senior
airman (SRA) by Article 15 action for disrespectful deportment.

According to a 24 January 1997 letter from the XXX ABW SJA to  the  PL
vice commander, the ROI had not yet been forwarded to  the  Space  and
Missile Systems Center (SMSC) at Los Angeles AFB for final review  and
processing. [Apparently, the LOD had been returned the  previous  year
for additional action. These seemed to be additional statements.]  The
SJA indicated to the PL vice commander that it  was  late  because  of
“several failures in [his] office” and he took “responsibility for the
delay.” Additional statements are summarized below:

      -- 6 Sep 96:  The applicant, after being advised of  her  rights
and asked about the events of the morning of 1 Jan 96 stated “the last
thing she remembered was dropping off her kids  at  the  baby-sitter.”
The children were dropped off around 1930 on 31 Dec [96].

      --16 Sep 96:
        1. The staff sergeant who baby-sat the applicant’s children on
the night of the accident indicated the applicant expressed  plans  to
go down to the bars and celebrate with her ex-husband and pick up  the
children around 0130.
        2. A witness going northbound on  San  Mateo  stopped  at  the
light and saw  the  applicant’s  car  proceed  into  the  intersection
without stopping and collide with the Jeep  that  was  making  a  left
turn. He thought the lights of the applicant’s car were on and he said
the car had a female driver and male passenger.

      -- 19 Sep 96:  Driver of the car next to the  Jeep  was  turning
left onto Academy. The other cars going northbound on  San  Mateo  had
been stopped  for  approximately  30  seconds.  He  did  not  see  the
applicant’s car coming and did  not  think  her  lights  were  on.  He
turned, heard the crash, got out to help and noted the applicant’s car
had a female driver and a male passenger.

      -- 3 Oct 96:  The driver of the Jeep  that  was  struck  by  the
applicant’s car indicated she was watching the car  to  her  left  and
“she never saw the other coming and didn’t think  it  had  its  lights
on.”

On 3 February 1997, the completed LOD ROI was forwarded  to  the  SMSC
commander, who approved the LOD findings on 1 March 1997.

The applicant was honorably discharged on 16 May 1997 in the grade  of
SRA, Completion of Required Active Service, with 9 years, 1 month  and
2 days of active duty. She had lost time from 1 January  1996  through
22 January 1996 and therefore received a reenlistment eligibility (RE)
code of “4F” (five or more days lost time during current enlistment).

AIR FORCE EVALUATION:

The SJA, HQ AFPC/JA, reviewed the case and opines that clear  evidence
was available to enable the IO to  conclude  that  the  applicant  was
driving on the night in question. It is reasonable to infer  from  the
fact that it took some time to remove her from her vehicle that  there
was ample opportunity for witnesses at the scene to determine that the
applicant was, in fact, the driver based on her  location  within  the
car. She and her ex-husband said  they  could  not  remember  who  was
driving. However, her ex-husband said in a  written  addendum  to  the
accident report that he was a passenger.  The applicant is  listed  as
the driver on the accident report. Most importantly, the other  driver
said in a sworn statement taken during the LOD investigation that  the
applicant was the driver of the other vehicle.

The applicant provides no medical or accident reconstruction  evidence
in support of her contention that her ex-husband’s injuries  prove  he
was driving. Reviewing the voluminous medical  treatment  records  for
the applicant and the injuries they describe seem just  as  consistent
with her being the driver.  Also, in a Social Work Service report from
applicant’s medical records, dated 31 January 1996,  a  social  worker
noted: “MVA [Motor Vehicle Accident] New Year’s Eve was patient’s  3rd
DWI [Driving While Intoxicated] and reportedly is in trouble with  the
AF because of this.” From this comment, it is apparent that  as  early
as one month after the accident she  was  acknowledging  she  was  the
driver of her vehicle. There are  numerous  other  references  in  her
medical  records  identifying  her  as  the  driver  as  well  as  her
acknowledging that she was the driver.

Likewise, the SJA does not believe the fact that the applicant was not
prosecuted  to  a  successful  conclusion  by   civilian   authorities
constitutes evidence that she was not driving. The  SJA  examined  the
Bernalillo  County  Metropolitan  Court  Tape  Log  docket  sheet  and
listened to the audiotape of the proceedings concerning  the  civilian
criminal case against her.  It is clear from the tape  that  the  case
against her was  dismissed  due  to  a  procedural  technicality,  not
because of any determination that she was not  driving.  Her  attorney
pointed out to the judge that the case was over three  years  old  and
therefore violated the “six-month rule.” The prosecutor concurred  and
the judge then dismissed the case. The SJA researched  the  applicable
NM statute of limitation law and found that criminal trials in NM must
be commenced within six months  of  arraignment  or  other  applicable
dates, absent extensions for good  cause.  The  prosecutor  apparently
chose not to attempt to account for the lengthy delay in resolving the
case and it was dismissed.   The  SJA  recommends  that  the  case  be
denied.

A copy of the complete Air Force evaluation, with  attachment,  is  at
Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  provided  a  rebuttal  that  included  statements  from   the
applicant and her ex-husband.  It was assumed she was the driver;  she
had no other knowledge other than what she was told and this  was  not
stated to her until two months later. She had a traumatic brain injury
and was in intensive care for one week. She does not believe she would
have acknowledged anything, given her  injuries.   Based  on  her  ex-
husband’s actions and the type of injuries he  sustained,  she  firmly
believes he was the driver.

In his statement, the ex-husband  indicates  that,  since  he  had  no
contact with the LOD IO regarding the car accident he was involved  in
on 1 January 1996, the statements made by the  LOD  IO  regarding  any
statements he supposedly made are untrue and incorrect.

The Albuquerque Ambulance Patient Report  provided  by  the  applicant
indicates that the ambulance arrived at the accident  scene  at  0203,
transported her ex-husband from the scene at 0212 and arrived  at  the
hospital at 0220, and he was a passenger involved in an MVA.

The complete rebuttal, with attachments, is at Exhibit E.

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. After a thorough  review
of the evidence of record and the applicant’s submission, we  are  not
persuaded  that  her  injuries  should  be  found  in  the  LOD.   Her
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by the SJA.  We find no evidence to  conclude  that
the applicant was not under the influence on  the  date  in  question.
Likewise, we find no evidence to cause us to believe she was  not  the
driver of the car that caused the accident.  We therefore  agree  with
the recommendations of the SJA and adopt the  rationale  expressed  as
the basis for our decision that the applicant has  failed  to  sustain
her burden of having suffered either an error or an injustice. In view
of the above and absent persuasive evidence to the contrary,  we  find
no compelling basis to recommend granting the relief sought.
THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  material  error  or  injustice;
that the application was denied without  a  personal  appearance;  and
that the application will only be reconsidered upon the submission  of
newly  discovered  relevant  evidence   not   considered   with   this
application.

The following members of the  Board  considered  this  application  in
Executive Session on 10 February 2000, under the provisions of AFI 36-
2603:

                  Mr. Joseph G. Diamond, Panel Chair
                  Mr. Gregory H. Petkoff, Member
                  Mr. Jay Jordan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 Jan 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 25 May 99.
   Exhibit D.  Letter, AFBCMR, dated 7 Jun 99.
   Exhibit E.  Letter, Counsel, dated 7 Jul 99, w/atchs.




                                   JOSEPH G. DIAMOND
                                   Panel Chair