RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2007-
04118
      COUNSEL: XXXXXXXXXXX
	XXXXXXXXXXXXXXXXX				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His Article 15, Uniform Code of Military Justice (UCMJ), action 
imposed around October 2000, be set aside; and, the line of duty 
(LOD) determination for his automobile accident on 18 July 2000 
be overturned.

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APPLICANT CONTENDS THAT:

Following his automobile accident on 18 July 2000, he was 
coerced into pleading guilty to a Driving While Intoxicated 
(DWI) charge so that the Air Force could take total 
jurisdiction.  He did not understand this action but complied 
with his acting commander.  He later found out that this was a 
mistake because his DWI charge was overturned by the court.  He 
accepted an Article 15 not knowing that his blood alcohol level 
showed no signs of alcohol.  

In support of his appeal, the applicant provides copies of court 
documents dismissing the DWI charges against him.  

The applicant’s complete submission, with attachments, is at 
Exhibit A.

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STATEMENT OF FACTS:

On 18 September 1996, the applicant enlisted in the Regular Air 
Force at the age of 18 in the grade of airman basic (E-1) for a 
period of four years.  He was progressively promoted to the rank 
of senior airman (E-4) effective and with a date of rank of 
18 September 1999.  

On 18 July 2000, the applicant was injured in a one-vehicle 
automobile accident at approximately 0310 hours when he lost 
control of the vehicle he was driving.  As a result of the 
accident, he sustained traumatic head injuries resulting in the 
complete loss of vision in his left eye, vision impairment in 
his right eye, occasional short-term memory impairment, and 
multiple left hand fractures.  An investigating officer (IO) was 
appointed to investigate the facts and circumstances surrounding 
the accident and to make a formal LOD determination.  Based on 
the results of the investigation, the IO determined the 
applicant’s injuries were not sustained in the line of duty due 
to his own misconduct.  On 29 September 2000, the reviewing 
authority approved the IO’s findings.  

A Medical Evaluation Board (MEB) report, dated 27 November 2000, 
indicates the applicant was diagnosed with a traumatic head 
injury and multiple hand fractures.  The MEB referred their 
findings to an Informal Physical Evaluation Board (IPEB).  On 
11 January 2001, the applicant requested a disability discharge 
due to his injuries.  The IPEB findings, dated 22 January 2001, 
found the applicant unfit for duty due to permanent physical 
disability and recommended he be discharged under Chapter 61, 
Section 1207, of Title 10, United States Code (USC).  The IPEB 
indicated that since the applicant’s injuries were determined to 
be not in the line of duty, his medical conditions were not 
compensable under the provisions of military disability 
law/policy.  On 25 January 2001, the applicant concurred with 
the IPEB findings and recommendation.  On 25 January 2001, the 
Secretary of the Air Force approved the IPEB’s recommendation 
and directed the applicant be separated from active service for 
physical disability under the provisions of Chapter 61, Title 10 
USC.  

The applicant was honorably discharged effective 12 March 2001 
after serving 4 years, 3 months, and 17 days on active duty.  
The narrative reason for his separation is Disability, Not in 
the Line of Duty.  

On 24 January 2008, AFLOA/JAJM notified the applicant that after 
reviewing his appeal, his master personnel file, and electronic 
military justice records, they found no copies or evidence of 
nonjudicial punishment administered to him during his Air Force 
career.  Accordingly, they have no records of nonjudicial 
punishment to correct or remove in connection with his files.  
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AIR FORCE EVALUATION:

AFPC/JA recommends denial of relief because, in their opinion, 
the applicant’s contentions are without merit and constitute 
neither error nor injustice.  JA states that following his 
accident, the State of North Carolina prosecuted the applicant 
for DWI.  On 26 October 2000, the applicant pled guilty to the 
offense and was convicted.  On 24 July 2007, the applicant was 
successful in his bid to have his conviction dismissed.  
Specifically, the State Court granted the applicant’s motion and 
found his guilty plea to the charge of DWI was not entered into 
knowingly and voluntarily.  In his appeal to the Board, the 
applicant now claims he had no alcohol in his system at the time 
of the accident; therefore, he seeks to have his records changed 
to show his injuries were in the line of duty, despite the 
overwhelming evidence to the contrary.  

JA states that a determination that a member’s injury was 
incurred “not in the line of duty, due to own misconduct” is 
appropriate when a preponderance of evidence shows the member’s 
injury was proximately caused by his or her own actions.  A 
finding of misconduct can be made when a member knew, or 
reasonably should have known, of his unfitness to operate a 
motor vehicle and is injured or killed in an accident.  
Voluntary intoxication or other circumstances that affect a 
member’s mental or physical faculties cause a member to be 
unfit.  The applicant’s BAC of .213, as well as his excessive 
speed, was a breach of what is expected of a reasonable person 
and displayed a total disregard for his safety and the safety of 
others.  It passes the Air Force Instruction’s test for willful 
misconduct, hence justifying a “not in the line of duty, due to 
own misconduct” determination, [because a reasonable person 
would not have attempted to drive a car under these conditions].  
In this case, the applicant’s own admission to drinking prior to 
driving, in addition to the medical records and police report, 
more than substantiates the final determination of “not in the 
line of duty,” due to own misconduct.  

The AFPC/JA evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel provides copies of medical records from 
the civilian medical center where the applicant was transported 
to by ambulance following his vehicle accident.  His client was 
not drunk.  He was originally charged with Driving under the 
Influence (DUI); however, that conviction was later overturned 
and the record expunged.  The provided medical records contain 
numerous errors to include incorrect Social Security Numbers, 
age, date of birth, type of accident (head-on collision versus 
one car accident) and type of vehicle involved in the accident.  
Reports to the North Carolina court indicated a blood alcohol 
content of zero.  The DUI conviction was based on an ill-advised 
plea by his client while he was suffering the effects of the 
vehicle accident.  Accordingly, the DUI conviction was expunged.  

The counsel’s complete response, with attachments, is at Exhibit 
E.  

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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.  We find no 
evidence of nonjudicial punishment in the applicant’s master 
personnel record or in the package submitted by the applicant in 
support of his appeal.  In addition, AFPC/JA searched the 
electronic military justice records and found no evidence of a 
nonjudicial punishment administered to the applicant during his 
Air Force career.  Therefore, we will only address his request 
to overturn his LOD determination.  After reviewing the evidence 
of record and the applicant’s submission, we are not persuaded 
that the LOD determination was incorrect.  Based on the results 
of the investigation, the IO determined the applicant’s injuries 
were not in the line of duty based on the applicant’s willful 
misconduct.  This determination is supported by the evidence 
provided during the investigation, to include witness statements 
attesting to the fact that the applicant had been drinking prior 
to his accident.  Therefore, we agree with the opinion and 
recommendation of the Air Force office of primary responsibility 
and adopt its rationale as the basis for our conclusion that the 
applicant has not been the victim of an error or injustice.  
Accordingly, in the absence of evidence to the contrary, we find 
no basis upon which to favorably consider his request to 
overturn his LOD determination.  

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2007-04118 in Executive Session on 10 February 2011, 
under the provisions of AFI 36-2603:

	XXXXXXXXXXXXXXXXXXXXX, Panel Chair 
	XXXXXXXXXXXXXXXXXXXXX, Member
	XXXXXXXXXXXXXXXXXXXXX, Member

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2007-04118:

	Exhibit A.  DD Form 149, dated 13 Dec 07, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/JA, dated 28 Feb 08.
	Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 08.
	Exhibit E.  Letter, Counsel, dated 6 May 10, w/atchs.




								XXXXXXXXXXXXXXXXXXXX
								Panel Chair