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AF | BCMR | CY2006 | BC-2005-02426
Original file (BC-2005-02426.doc) Auto-classification: Denied

                       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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