APPLICANT REQUESTS: That the determination that he was injured not in line of duty due to his own misconduct be changed to line of duty, and that he be placed on the temporary disability retired list or be granted physical disability retirement.

APPLICANT STATES : That the not in line of duty determination due to own misconduct is contrary to the evidence in the line of duty (LOD) investigation in that the presumption of line of duty is not overcome by substantial evidence.

COUNSEL CONTENDS : That the report of investigation (ROI) did not include sworn statements from essential eye witnesses, that the final decision document referred to evidence not included in the ROI and not reviewed or seen by the applicant, that the Chief of the Personal Affairs Branch at the Total Army Personnel Command (PERSCOM) was not a neutral official, but may have become an investigator in this case, and that the burden of proof has shifted from the government to the applicant, in that he had to prove his innocence.

Counsel states that the government’s decision is not based upon substantial evidence, but rather upon a lack of evidence, supposition, and hearsay, and that the government has substituted a greater weight of evidence standard rather than the substantial evidence standard required by law.

Counsel states that applicant requires medical attention, cannot work, that he was traveling to a school assignment at the time of the accident, and that his Army record has been exemplary. Counsel states that there is no legally competent evidence to support a blood alcohol content (BAC) of 0.235 except for the hearsay note in the state trooper’s accident report, there is no blood test result and no indication of chain of custody. Counsel states that the applicant had no history of discipline problems or alcohol abuse in the Army or with civil authorities.

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Counsel provides numerous other arguments to support his and the applicant’s contentions that the applicant was not intoxicated or driving under the influence at the time of the accident and that the investigation should be determined in line of duty. COPY OF COUNSEL’S BRIEF IS ATTACHED.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Army on 3 April 1991 after obtaining a waiver of certain disqualifications for enlistment, to wit: speeding and driving with a suspended license, driving without a license, and driving while intoxicated (later reduced to driving while ability impaired).

A Mississippi uniform accident report indicates that the applicant was traveling west on interstate 20 in an east bound lane when the vehicle in which he was driving collided head on with another vehicle. The report shows that the applicant was determined to have a blood alcohol count (BAC) of .235 and was driving under the influence.

A 13 April 1995 statement of medical examination and duty status (DA Form 2173) indicates that the applicant was admitted to the Jeff Anderson Hospital in Meridian, Mississippi on 13 April 1995, as a result of a head on motor vehicle accident, that he suffered multiple trauma, and that his blood alcohol level was 0.235. The commander’s portion of that form indicated essentially the same information and stated that a formal line of duty investigation was required.

A 6 December 1995 report of investigation determined that the applicant was driving west in an east bound lane on interstate highway 20 when he collided head on with an 18-wheel freight liner. A state trooper arrived at the scene and ensured that a blood alcohol test sample was drawn and that the applicant was sent to a hospital. The report indicated that the road was dry, in good condition, visibility was clear, and the 18-wheeler had attempted to stop prior to impact, leaving a 285 foot skid mark. There was no evidence that the applicant attempted to stop, although he did swerve away from the freightliner prior to impact. The results of the BAC showed that the applicant had a BAC of 0.235 and was heavily intoxicated. There was no evidence to show that the applicant had driven across the grass median separating the opposing lanes and wandered into the opposing lanes of traffic. The investigating officer reasoned that the applicant had made a wrong turn at an entrance or exit ramp. The presence of broken alcoholic beverage bottles supports the notion that the applicant had voluntarily become intoxicated and that his judgment was impaired at the time of the accident. The investigating officer determined that alcohol abuse and resultant impaired judgment by the applicant was the proximate cause of his accident and that his injuries were not sustained in the line of duty.

The investigating officer, in response to the applicant’s rebuttal of the findings of the LOD, made a statement to the effect that he had attempted to obtain additional evidence to include a statement from the driver of the 18-wheeler, and a copy of the original blood alcohol test results, to no avail; consequently, he (the investigating officer) decided to complete the LOD investigation.

On 2 April 1996 a lawyer from the office of the staff judge advocate at Fort Hood Texas stated that the applicant’s intoxicated and unfit driving state could be said to have proximately caused the accident, and that the LOD investigation was legally sufficient.

On 16 April 1996 the approving authority approved the LOD investigation, that the applicant’s injuries were not in line of duty due to his own misconduct.

The applicant made a rebuttal to the LOD findings to the effect that he had been in the Army for five years, had an excellent record, with no disciplinary problems, that because of his severe injuries he had no independent recollection of anything about the accident or even leaving Fort Hood; however, he does know that he is not a person to drink and drive and could not believe that he was intoxicated. The applicant contended that the blood sample records may have been mixed up with another person’s, that the conclusion that it would have been difficult for him to cross the median is not supported by the facts, that the investigating officer had no first hand knowledge of the facts and made some guesses, and that he objected to the hearsay statement of an officer who stated, when he escorted the applicant’s wife to the scene of the accident, there were broken beer bottles in the front seat of the applicant’s vehicle.

On 22 January 1997 the applicant appealed the LOD report, and he included his previous rebuttal, the aforementioned legal brief and analysis by his counsel, and the statement immediately following from his wife, as the whole of his appeal.

The applicant’s wife made a statement on 19 March 1997 supporting her husband, stated that the applicant was not a person to drink and drive, and submitted a copy of the applicant’s detailed trip log. She stated that the roads in the area are confusing, that at some places the two lanes are totally isolated and could make you believe they are two lane roads and not interstate; there are places where a car could cross the median. She averred that it would be totally out of character for her husband to drink and drive.

On 26 February 1997 an official of the PERSCOM denied that appeal, stating that the proximate cause of the applicant’s injury was his driving while in an unfit condition as evidenced by the findings of the investigating officer, supported by evidence of broken alcoholic beverage bottles found in the applicant’s vehicle and the fact that he was driving west on an east bound interstate lane. That official also indicated that emergency room records at the Newton Regional Hospital where the applicant was immediately transported following the accident, indicated that there was a strong odor of alcohol emanating from him.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from an official of the PERSCOM. That official stated that the LOD investigation was reviewed administratively and legally, that the command staff judge advocate opined that, contrary to the contentions of the applicant and his civilian counsel, the line of duty investigation met the regulatory requirements of Army Regulation 600-8-1; that the government is not required to prove its case beyond a reasonable doubt, rather the regulation requires that all findings be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The greater weight of evidence indicates that the applicant was driving in an unfit condition at the time of his accident.

The legal standard for driving while intoxicated in the state of Mississippi is a .10 BAC (Mississippi Code 1972 annotated, Title 63, Motor Vehicles and Traffic Regulations).

Army Regulation 600-8-1, paragraph 39-2, provides that
line of duty investigations are conducted essentially to
arrive at a determination as to whether misconduct or
negligence was involved in the disease, injury, or death
and, if so, to what degree.

Paragraph 39-5 of the aforementioned regulation states, in effect, that decisions on LOD determinations will be made in accordance with the standards set forth in this regulation and that injury or disease proximately caused by the member’s intentional misconduct or willful negligence is “not in LD-due to own misconduct.” Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. That paragraph goes on to say that unless refuted by substantial evidence contained in the investigation, an injury is presumed to be in line of duty (LD). LD findings or determinations must be supported by substantial evidence and by a greater weight of evidence that supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact, considering all direct and all indirect evidence. That paragraph continues with the statement that there is no distinction between the relative value of direct and indirect evidence and the weight of the evidence is not determined by the number of witnesses or exhibits but by the investigating officer and higher authorities considering all the evidence, evaluating factors such as a witness’s behavior, opportunity for knowledge, etc., and considering other signs of truth.
Paragraph 39-5 goes on to state that the rules in Appendix F will be considered fully in deciding LD determinations. These elaborate upon but do not modify the basis for LD determinations.

Paragraph 41-10 pertains to intoxication and drug abuse and states, in pertinent part, that an injury incurred as the “proximate result” of prior and specific voluntary intoxication is incurred as the result of misconduct. In order for intoxication alone to be the basis for a determination of misconduct with respect to a related injury, there must be a clear showing that the member’s physical or mental faculties were impaired due to intoxication at the time of the injury, the extent of the impairment, and that the impairment was a proximate cause of the injury.

Appendix F, Rules Governing Line of Duty and Misconduct Determinations, provides specific rules of misconduct:

Rule 1 provides that injury or disease directly caused
by the misconduct or willful negligence is not in line
of duty. It is due to misconduct. This is a general
rule and must be considered in every case in which
misconduct or willful negligence appears to be involved.

Rule 3 provides that injury or disease that results in
incapacitation because of the abuse of alcohol and other
drugs is not in line of duty. It is due to misconduct.
This rule is on the effect of the drug on the member's
conduct, as well as the physical effect on his body.
Any erratic or reckless conduct caused by the effect of
the drug, which directly causes the injury or disease is
misconduct.

Rule 4 provides that injury or disease that results in
incapacitation because of the abuse of intoxicating
liquor is not in line of duty. It is due to misconduct.
The principles in Rule 3 apply here. While the mere
drinking of alcoholic beverages is not misconduct, one
who voluntarily becomes intoxicated is held to as high
as a standard of conduct as one who is sober.
Intoxication does not excuse the individual's conduct.
Rule 8 states that injury caused by driving a vehicle when in an unfit condition and the member knew or should have known about it, is not in line of duty. It is due to misconduct. A member involved in an automobile accident caused by his having fallen asleep while driving is not guilty of willful negligence solely because he fell asleep. The test is whether a person, under the same circumstances, would undertake the trip without falling asleep while driving. Unfitness to drive may have been caused by voluntary intoxication or use of drugs.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The evidence of record shows that the applicant did undergo a blood alcohol test and that his BAC was .235. That information was contained in the Mississippi state trooper’s official accident report and on the DA Form 2173 (statement of medical examination and duty status). Neither the applicant nor his counsel has provided proof that this information is not reliable and should not be considered as evidence that the applicant was intoxicated. It is the considered opinion of this Board that the state trooper’s accident report is accurate, reliable, and was made without prejudice.

2. The presence of broken alcoholic beverage bottles, by itself, does not prove that the applicant was driving while impaired; however, it does add weight to the conclusion that alcohol was involved. The fact that the applicant was driving west on an east bound lane on an interstate plainly adds fuel to the fire.

3. The applicant’s blood alcohol content is prima facie evidence that the applicant was under the influence of alcohol to a degree that he was rendered incapable of driving safely. His BAC was more than twice the legal limit for driving while intoxicated. The findings of the line of duty investigating officer is supported by this substantial evidence, i.e., .235 BAC, and by the other evidence included in the investigating officer’s report.
4. Notwithstanding the numerous contentions by the applicant and his counsel, the proximate cause of the accident and the applicant’s injuries was the applicant’s abuse of alcohol which impaired his driving ability. He was driving while in an unfit condition.

5. The not in line of duty, due to own misconduct finding was proper and in accordance with the provisions of the regulation. The applicant is not eligible to be placed on the temporary disability retired listed or be granted physical disability retirement because of this line of duty determination.

6. In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director