MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 February 2002
         DOCKET NUMBER: AR2001064825

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Roger W. Able		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That the records be corrected to show the injury he received in November 1978 was incurred in the line of duty, not due to his own misconduct.

APPLICANT STATES: That when he divorced, he was given visitation privileges with his children. His children were living with his former in-laws and his relationship with them was never good. When he arrived at his former mother-in-law’s home, his former brother-in-law was under the carport drinking beer. His former brother-in-law told him the children were not home but he had seen his daughter at the front door. His children came to the carport door and he exited his car in his joy to see them. His former brother-in-law then hit him in the head with a 2x4. He was hospitalized and underwent brain surgery. Then he went back to Fort Campbell, KY. His commander and first sergeant never asked him what happened. He went on sick call almost every day because of headaches and seizures. His first sergeant told him he was not eligible for a medical discharge because he had only 7 months left before his separation date. However, he has recently found out otherwise. When the incident happened, he was not absent without leave (AWOL) and his injury was not due to his willful misconduct. He feels he was not in a position to defend himself with the injuries he had. He provides no supporting evidence.

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

He completed his enlistment physical on 6 January 1975. He indicated on his Report of Medical History, SF 93, that he was in good health, was on no medication, and had never been treated for a mental condition. He enlisted in the Regular Army on 4 June 1975. He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

On 20 June 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for breaking restriction. On 1 June 1977, he accepted NJP under Article 15, UCMJ for striking a fellow soldier in the face with his fist. On 14 December 1977, he accepted NJP under Article 15, UCMJ for communicating a threat to do bodily injury to a fellow soldier with intent to unlawfully obtain $15.00.

On 13 November 1978, a police report shows the applicant was arrested for public drunkenness, disorderly conduct, trespassing, and destruction of private property. In a sworn statement made by the applicant on 5 March 1979, he stated that, under the pressure of losing his children, he went to where his children were and in a rage he rammed his car into his former mother-in-law’s car and ramming her car through the utility room. Her son came out of the house and hit him with a 2x4 on the right side of his head.

A formal line of duty investigation found the applicant’s closed head trauma injury occurred when he was not present for duty but was absent with authority, that intentional misconduct or neglect was the proximate cause of the injury, and that he was mentally sound at the time. The finding was not in line of duty – due to own misconduct. The finding was approved on 23 April 1979.

A Medical Evaluation Board (MEB) diagnosed the applicant with organic brain syndrome, traumatic, acute, severe, as a result of a blow to the head; anemia; and mixed character disorder, chronic, severe, existed prior to service (EPTS). The Narrative Summary noted that contact was made with the applicant’s physician who last saw him in July 1973. He had been initially considered to have a passive-aggressive personality disorder with a situational adjustment. An EEG on 11 August 1972 was read as normal. He had been hospitalized for threatening to kill his mother. A course of Prolixin, then Phenobarbital was tried with equivocal results. Testing revealed poor impulse control, limited interpersonal relationships, and antisocial personality configuration. He was discharged on Haldol. His physician had no record of the applicant’s behavior for the period 1973 – 1977 but his Haldol prescription was last known to be refilled in January 1977. The MEB found the applicant to be mentally competent for pay purposes, to have the capacity to understand the nature of, and to cooperate in, Physical Evaluation Board (PEB) proceedings, and not to be a danger to himself or others. The MEB referred the applicant to a PEB.

On 11 July 1979, an informal PEB found the applicant to be unfit by reason of organic brain syndrome, traumatic, incurred not in the line of duty due to own misconduct. The diagnoses of anemia and mixed character disorder were found to be not ratable. His separation without entitlement to disability benefits was recommended. On 4 August 1979, the applicant concurred in the findings and recommendation and waived a formal hearing of his case.

On 28 August 1979, the Military Personnel Center approved the PEB’s recommendation and directed the applicant be discharged under the provisions of Army Regulation 635-40, paragraph 4-19e(6).

On 10 October 1979, the applicant was discharged, without severance pay, for medical reasons. His Certificate of Release or Discharge from Active Duty, DD Form 214, item 25 erroneously shows he was separated under Army Regulation 635-200, rather than Army Regulation 635-40.

Army Regulation 600-8-1 provides that a line of duty investigation must be conducted in all cases of injury not a result of enemy action. 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 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. “Proximate cause” is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produces an injury and without which the injury would not have occurred. A proximate cause is a primary moving or predominating cause and is the connecting relationship between the intentional misconduct or willful negligence of the member and the injury that results as a natural, direct, and immediate consequence which supports a Not in Line of Duty-Due to Own Misconduct determination. The authorized finding for an injury or disease that was proximately caused by intentional misconduct or willful negligence of the member is Not in Line of Duty - Due to Own Misconduct.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Under the laws governing the Army Physical Disability Evaluation system, soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. The disability must not have resulted from the soldier’s intentional misconduct or willful neglect or been incurred during a period of unauthorized absence. At the time, paragraph 4-19e(6) stated that the Military Personnel Center would direct the separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence.

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

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The line of duty investigation did not find that the applicant was AWOL; in fact, it found that his absence was authorized. However, it found that his injuries were the result of his willful misconduct. Given the information contained in the police report and his own 25 March 1979 sworn statement, the Board agrees with the finding of the line of duty investigation. It is reasonable to presume that the applicant’s ramming into his former mother-in-law’s car and thereby causing her car to ram into her utility room was the proximate cause of his former brother-in-law hitting him in the head with a 2x4.

3. Despite what his first sergeant may have told him, the applicant was processed through the physical disability system. He was found to be mentally competent. He was given a medical discharge. Since the Board agrees with the finding that his injury was the result of his own misconduct, his separation without severance pay was appropriate.

4. 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

__jh____ __kak___ __rwa___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001064825
SUFFIX
RECON
DATE BOARDED	20020205
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	122.01
2.
3.
4.
5.
6.