RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-02426
INDEX CODE: 122.01
COUNSEL: PVA
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His automobile accident and resulting injuries be changed from not in
the line of duty (NLOD) to in the line of duty (LOD).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The LOD investigation does not support the conclusion that his
accident was not in the line of duty. The applicant’s representative
contends that the evidence in the record does not support the
conclusion that alcohol was the direct cause of the accident.
In support of his appeal, the applicant provides a copy of his PVA
representative presentation dated 11 October 2002 and a letter from a
physician from the Department of Veterans Affairs.
Applicant’s submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 16 August 1988, the applicant enlisted in the Regular Air Force for
a period of four years. The applicant was progressively promoted to
the rank of airman first class (E-3) with a date of rank and effective
date of 16 December 1989.
On 16 May 1990, the applicant lost control of his automobile exiting
the freeway and collided with a light pole. The nature and extent of
his injuries were fracture of T6 possible sublucation of C5.
According to a line of duty determination signed on 7 June 1990, the
applicant’s injuries were found to be in the line of duty. On 28 June
1990, the commander recommended a formal investigation be conducted.
On 9 August 1990, based on a Report of Investigation, Line of Duty and
Misconduct Status, the preponderance of evidence indicated the
accident was the result of excessive speed while driving under the
influence of alcohol. Also, there were indications that a seat
belt/harness was not used. The investigating officer concluded that
the applicant’s injuries were NLOD due to applicant’s own misconduct.
On 12 October 1990, the applicant was considered by a medical
evaluation board (MEB) for T6 paraplegia; and neurogenic bladder and
bowel. The MEB recommended that a Physical Evaluation Board (PEB)
consider his case. The PEB was convened on 6 December 1990 and found
the applicant was unfit due to “burst fracture T-6 with T-6 paraplegia
with associated compression fracture of T-5 with neurogenic bowel and
bladder” and recommended he be discharged under 10 USC 1207 with a
rating of 100/NA. On 6 December 1990, the applicant disagreed with
the findings and through counsel submitted a rebuttal. On 15 February
1991, the Secretary of the Air Force determined that the applicant was
physically unfit for continued military service and directed he be
discharged under the provisions of 10 USC 1207, with no entitlement to
a disability retirement or severance pay. The applicant was honorably
discharged effective 25 March 1991. He had served 2 years, 7 months,
and 10 days on active duty.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/JA recommends the application be denied. JA advises that there
is no new evidence, merely a new interpretation of te same evidence
available at the time of the initial inquiry and subsequent levels of
review. The letter from the Department of Veterans Affairs medical
doctor asserts the applicant’s blood alcohol level at the time of the
accident cannot be determined to a medical certainty because of the
many factors that influence blood alcohol. The applicant does not
introduce any concrete evidence that the tests done at Riverside
Community Hospital were erroneous. JA states that a specific blood
alcohol level is not required for a finding of not in the line of
duty. The standard is intentional misconduct, willful neglect, or
gross negligence. JA advises that the applicant’s representative
makes new arguments using existing evidence in an attempt to persuade
the Air Force to change the NLOD; however, the record does not support
the change. The AFPC/JA evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 10 November 2005, a copy of the Air Force evaluation was sent to
the applicant for review and comment. As of this date, this office
has not received a response.
_________________________________________________________________
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. We took notice of the
applicant’s complete submission in judging the merits of the case.
His contention that the Line of Duty (LOC) investigation does not
support the conclusion that his automobile accident and resulting
injuries were not in the line of duty (NLOD) was duly noted. However,
after a thorough review of the available evidence of record and the
AFPC/JA opinion, we believe the applicant’s LOD was properly evaluated
under the appropriate Air Force regulations. While the accident and
resulting paralysis is regrettable, we agree with the opinion and
recommendation of the Air Force office of primary responsibility and
adopt their rationale as the basis for our conclusion that the
applicant has not been the victim of an error or injustice.
Therefore, we have no basis to favorably consider the applicant’s
request.
____________________________________________________________
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-
2005-02426 in Executive Session on 21 March 2006, under the provisions
of AFI 36-2603:
Mr. James W. Russell III, Panel Chair
Mr. Patrick D. Daugherty, Member
Ms. Debra Walker, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 9 Jul 00, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/JA, dated 3 Nov 05.
Exhibit D. Letter, SAF/MRBR, dated 10 Nov 05.
JAMES W. RUSSELL III
Panel Chair
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