RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-04061
            INDEX CODE:  108.03
            COUNSEL:  Mr. Cristobal Escamilla

            HEARING DESIRED:  Not Indicated

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her deceased  husband's  Line-of-Duty  (LOD)  determination  be  changed  to
reflect In LOD, rather than Not in LOD (NLOD).

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APPLICANT CONTENDS THAT:

AFI 36-2910 provides that LOD determinations be completed within  about  two
months.  However, the investigating officer (IO)  was  not  appointed  until
five months after the accident and  was  not  completed  until  another  two
months.  The appointing  officer  appointed  a  lieutenant  to  conduct  the
investigation without explaining  why  he  did  not  appoint  a  captain  or
higher.  With six qualified officers under his command to  choose  from,  he
apparently was more interested in avoiding temporary  inconvenience  in  his
unit  than  in  insuring  a  fair  and  proper  investigation.   The  letter
appointing  the  investigating   officer   instructs   the   lieutenant   to
investigate and determine the cause of death as "misconduct,"  and  as  such
the investigating officer's findings  were  heavily  influenced  before  the
investigation even started.

The IO never took in all the facts, which showed that  the  accident,  which
occurred on a wet and cold day, was caused by many different  circumstances.
 There is no evidence presented that can prove  without  a  doubt  that  the
accident was caused by  willful  misconduct.   A  more  senior  officer  not
influenced  by  his  commander's  explicit  orders  to  find  the  death  as
misconduct would have  seen  that  the  civilian  sheriff's  report  clearly
states that there is no way his Camero could have picked up speed from 0  to
80 MPH from the stop sign to the point of impact in 1/10 of  a  mile,  on  a
rainy and cold day, with extremely worn tires.  The only non-witness  was  a
woman who heard the vehicle's engine rev-up and later heard an impact.   She
was not an eyewitness, however, her testimony was heavily  used.   What  she
heard was his loud mufflers as he was accelerating  to  get  onto  the  main
road, and because of his worn tires and poor traction  he  lost  control  of
the vehicle.  The speedometer reading 80 MPH is  unreliable  evidence  since
the speedometer dashboard was found across the street  and  the  speedometer
handle moved on any movement or contact of the dashboard.  The IO  used  her
husband’s  past  problems  with  speeding  in  making   his   determination.
However, his record shows he was trying to correct  his  behavior  since  he
had  no  tickets  during  2002.   The  findings  and   conclusion   of   the
investigation were all in complete error.  The widow  and  child  should  be
provided the benefits and entitlements associated with a death In-LOD.

In support of her  request,  applicant  provided  her  counsel's  brief  and
documentation  associated  with  the  LOD   determination.    Her   complete
submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The decedent contracted his initial enlistment in the Regular Air  Force  on
21 Mar 96 and was progressively promoted to  the  grade  of  staff  sergeant
effective and with a date of rank of 1 Oct 02.

On 25 Nov 02, he was killed in a single  car  accident  while  returning  to
work after lunch.  After a formal LOD investigation, the IO found the  death
occurred because of excessive speed on wet  and  cold  road  conditions  and
that the death was caused by his own misconduct  and  willful  neglect.   He
served 6 years, 8 months, and 5 days on active duty.
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AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states the decedent's death was  due  to  his
own misconduct.  The LOD completed after his death was done properly and  in
accordance with Air Force instruction.  JA states as the language of AFI 36-
2910 suggests, the timeline is a goal that Air Force personnel  should  meet
when processing an LOD investigation, not one  that  must  be  met.   Timely
processing depends upon the particular facts of each case.   In  this  case,
the county coroner's report was  not  completed  until  nearly  four  months
after the accident.  It was prudent for the unit  to  wait  for  the  report
before beginning the formal LOD investigation.  Five months to  complete  an
investigation,  including  review  and  obtaining  signature,  is   not   an
inordinate amount of time.  Even if it were, the simple  fact  that  an  LOD
process was lengthy does  not  support  changing  a  correct  finding.   The
appointment  letter  does  not  direct  the  IO  to  find  the  accident  as
misconduct.  Apparently the applicant confused the title of  the  AFI  (Line
of Duty (Misconduct) Determination) as directing the  investigating  officer
to make a determination of misconduct.   The  IO's  report  shows  that  his
ultimate conclusions were based on a preponderance of the evidence  and  not
by superior direction.  The Appointing Authority  included  a  memo  in  the
case  file  explaining  that  operational  readiness  prevented   him   from
appointing either of the two captains  in  his  Group  (both  were  critical
maintenance supervisors) or any of the four field grade officers  (all  were
filling  command  billets).   Again  the  language  in  the   AFI   is   not
restrictive.  The IO appointment paragraph states that the  IO  "should  be"
not "must be."

An LOD determination of NLOD, due to own misconduct is  appropriate  when  a
preponderance  of  evidence  shows  the  member   engaged   in   intentional
misconduct or was willfully negligent.  The IO found by a  preponderance  of
evidence that the accident was caused by recklessly speeding on  a  wet  and
icy road.  A safety investigation by the Air  Force  found  it  more  likely
that he  was  traveling  at  60  MPH  at  the  time  of  the  accident  (his
speedometer could have registered 80 MPH because  his  tires  lost  traction
and spun forward at the greater speed).   The  posted  speed  limit  at  the
accident  scene  is  35  MPH.   The  evidentiary   standard   for   an   LOD
determination  is  not  proof  beyond  a  reasonable  doubt,  but  rather  a
"preponderance of evidence" which is  defined  as  "the  greater  weight  of
credible evidence."  The IO properly used both direct and indirect  evidence
to determine the finding that his misconduct led to his death.

The JA evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  9  Jan
04 for review and comment within 30 days.  As of this date, this office  has
received no response.

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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 error  or  injustice  that  would  warrant  corrective  action.
After a thorough review of the evidence of record, we  see  no  evidence  of
error or impropriety in the LOD process and are not persuaded  by  counsel's
contentions, that the applicant has been the victim  of  an  injustice.   We
agree with the Office of the Judge Advocate  General  that  it  appears  the
applicant misconstrues the investigating  officer's  appointment  letter  as
instructions to find the cause of death as misconduct.   Further,  we  agree
that the language of the Air Force Instruction is not  restrictive  in  this
case and we believe those  particular  guidelines  can  only  be  reasonably
applied on a case-by-case dependent upon  the  individual  circumstances  of
each case.  Therefore, we  adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.   We  are  not  unsympathetic  towards  the  applicant;  however,
evidence has not been presented which would lead  us  to  believe  that  the
investigating officer's findings were erroneous or unjust.  Accordingly,  in
the absence of evidence to the contrary, we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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 AFBCMR Docket Number  BC-2003-
04061 in Executive Session on 16 Mar 04, under the  provisions  of  AFI  36-
2603:

      Ms. Olga M. Crerar, Panel Chair
      Mr. James W. Russell III, Member
      Mr. James A. Wolfe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 5 Jan 04.
    Exhibit D.  Letter, SAF/MRBR, dated 9 Jan 04.




                                   OLGA M. CRERAR
                                   Panel Chair