AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 
DOCKET NUMBER:  BC-2012-01128 
COUNSEL:  NONE 
HEARING DESIRED: NO 

IN THE MATTER OF: 
   
   
 
    
 
_________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His records be corrected to show that his injuries were In Line 
of Duty (LOD), rather than Not In Line of Duty (NILOD). 
 
_________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
His  injury  [sic]  occurred  while  he  was  on  active  duty  and  the 
investigating  officer  found  it  to  have  occurred  ILOD.    The 
Department of Veterans Affairs (DVA) also found his injury to be 
ILOD. 
 
In support of his request, the applicant provides a copy of his 
DD Form 261, Report of Investigation Line of Duty and Misconduct 
Status, a copy of the Investigating Officer (IO) Memorandum, and 
a copy of his DVA Rating Decision. 
 
His complete submission, with attachments, is at Exhibit A.  
 
_________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On 31 Dec 10, the applicant attended a party and was drinking on 
the night of his injuries.  His blood alcohol content (BrAC) was 
0.116  over  an  hour  after  the  incident  occurred.    He  sustained 
injuries  to  his  left  and  right  hands  caused  by  a  mortar  style 
firework blowing up in his hands.  He had surgery to repair his 
left hand and his right hand had to be amputated. 
 
The  applicant’s  DD  Form  261,  dated  17  Aug  11,  Remarks  Section 
10.g. reflects that the IO found him ILOD.  The remarks section 
reflects that “although alcohol was a factor, I do not believe it 
to be intemperate.  I did not find a preponderance of evidence 
that proves A1C S injuries were due to his own misconduct.”  Item 
21  states,  “I  do  not  concur  with  the  IO  findings  and 
recommendation.  I find that [applicant’s] conduct on 31 Dec 10 
constituted willful neglect IAW AFI 36-2910.  Therefore, I find 
him not in the line of duty.” 
 

 
 

AFI  36-2910,  Line  of  Duty  (Misconduct)  Determination,  states, 
“[a]n  injury  incurred  during  the  intemperate  use  of  alcohol 
should be found to be ‘due to misconduct’ if it is proven that 
the  intemperate  use  of  alcohol  was  the  proximate  cause  of  the 
injury.”    Additionally,  the  instructions  states,  “[u]nexploded 
ammunition  or  other  objects,  firearms,  and  highly  flammable 
liquids are inherently dangerous and their handling necessitates 
a high degree of care.  Tampering with, attempting to ignite, or 
otherwise handling such objects in disregard of their dangerous 
qualities is strong evidence of misconduct.” 
 
The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of the 
Air Force, which is at Exhibit C. 
 
_________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFPC/JA  recommends  denial  and  states  that  the  applicant  has 
failed  to  establish  any  injustice.    In  this  respect,  the 
applicant believes that an injustice occurred because his injury 
happened while on active duty and the IO found him ILOD.  While 
both of these contentions are true, the LOD instruction provides 
that the approving authority will make the final determination.  
The question is whether the finding constitutes an injustice.  It 
is  unfortunate  that  the  applicant  lost  his  right  hand,  but  it 
also  might  be  considered  unfair  in  layman’s  terms  that  the  IO 
found  him  ILOD  while  the  approving  authority  found  him  NILOD.  
However,  the  approving  authority  is  lawfully  permitted  to  make 
that determination and based on the facts that determination was 
appropriate. 
 
In  addition,  such  determination  was  found  to  be  legally 
sufficient  by  their  office,  as  it  was  rooted  in  a  reasonable 
application of the law to the facts.  Accordingly, when applying 
the  provisions  of  the  law  to  the  fact  that  the  applicant  was 
under  the  influence  of  a  substantial  amount  of  alcohol  when  he 
handled the mortar-type firework, and he disregarded the warning 
and  foreseeable  consequences  of  mishandling  fireworks,  the 
approving  authority  concluded  the  applicant  was  NILOD  –  Due  to 
Own  Misconduct.    For  this  reason,  JA  does  not  find  that  the 
circumstances rise to a level that “shocks the sense of justice” 
within the meaning of the law. 
 
The complete JA evaluation is at Exhibit C. 
 
_________________________________________________________________ 
 
 
 
 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

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A copy of the Air Force evaluation was forwarded to the applicant 
on 18 May 12 for review and comment within 30 days.  As of this 
date, this office has received no 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; however, 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.  Therefore, in the 
absence  of  evidence  to  the  contrary,  we  find  no  basis  to 
recommend granting the relief sought in this application. 
 
4.  The applicant's case is adequately documented and it has not 
been  shown  that  a  personal  appearance  with  or  without  counsel 
will materially add to our understanding of the issue involved.  
Therefore, the request for a hearing is not favorably considered. 
_________________________________________________________________ 
 
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-2012-01128 in Executive Session on 10 Jan 13, under the 
provisions of AFI 36-2603: 
 
The following documentary evidence for Docket Number BC-2012-01128 
was considered: 
 
    Exhibit A.  DD Form 149, dated 19 Mar 12, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records. 
    Exhibit C.  Letter, AFPC/JA, dated 8 May 12. 
    Exhibit D.  Letter, SAF/MRBR, dated 18 May 12. 
                            
  
                                  Panel Chair 

 

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