PROCEEDINGS


         IN THE CASE OF:
                                   
        

         BOARD DATE: 25 July 2002
         DOCKET NUMBER: AR2002067422

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

Mr. Carl W. S. Chun		Director
Mr. W. W. Osborn, Jr..		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Kenneth W. Lapin		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that the line of duty (LOD) determination be changed to "In Line of Duty."

3. He states, in effect, that he had a brief argument with the shooter because he did not want to play pool, but getting shot was certainly not the foreseeable consequence of an argument over a pool table. That the finding of Not in the Line of Duty–Due to Misconduct is inconsistent with the regulatory requirements. The line of duty investigation (LODI) was inadequate and inconsistent with the regulation. The disabling condition (amputation) was caused by failure to aggressively treat the infection not by the gunshot wound. He was denied any real opportunity to participate in the investigation and did not receive due process. Final action was taken on the LODI before his time to offer a rebuttal had expired and before his time to submit an appeal had started.

4. Counsel contends that the final LOD report contained different statements than the one that was furnished in response to a Freedom of Information Act (FOIA) request. Therefore, an original copy of the civilian police report was requested but that was not provided until January 2002. A comparison of the police and the LOD report shows that the LOD investigator was not objective and withheld statements that were favorable to the applicant.

5. Counsel and the applicant specifically cite the statement of a witness, Z____ E____, who stated that she did not see the applicant with a gun. They believe that this evidence is crucial because all the other witnesses and the operator of the club seemed to be friends with the individual who shot him.

6. The finding of Not in the Line of Duty–Due to Misconduct is inconsistent with the regulatory requirements because the witnesses were unreliable or self serving and the evidence they furnished fails to overcome the regulatory presumption that the injury occurred in the line of duty. The applicant did not know his brother was armed and this does not constitute misconduct on his part.

7. He was heavily sedated when the LOD investigating officer took his sworn statement. The police investigator also took a sworn statement. The investigations produced no other sworn statements that would outweigh his own sworn statements.

8. The admitted shooter, R____ C____'s, statements are self-serving. If he did not claim self-defense he would face a life sentence. They are also contradictory in that he claimed the applicant had a gun yet he repeatedly demanded that the applicant "show your hand." The other statements are contradictory,
self-serving, protective of others under suspicion or simply uninformative. The club operator, J____ B____ was friendly with all of the other principals who were members of a gang that hung out at the Club. There is no independent evidence of where the gun was found, nor was he asked why he removed the gun from the crime scene or why it took him so long to hand the gun over to the police.

9. The LOD investigating officer did not take independent statements from the various witnesses nor did he even try to interview the applicant after he recovered from the surgery. The investigating officer was probably more interested in getting back to his regular assignment and the legal review of the LOD investigation was literally just a rubber stamp.

10. They argue that the amputation of the applicant's leg was caused by infection at a surgical site and not by the gunshot wound and offer the statement of the applicant's physician to substantiate this claim.

11. They claim that the applicant was denied an opportunity to participate in the investigative process and could not get legal assistance. The Army referred him to the Air Force because he was hospitalized at an Air Force installation and the Air Force refused to help him because they were not familiar with Army procedures. Because of this final action was taken on his case before he could respond to the LODI or file an effective appeal after it was approved.

12. In an amendment to the application they offer a statement from Z____ E____ to the effect that she saw the applicant and the shooter talking but she did not see the applicant with a gun. She only saw one gun. They see this as definitive evidence that the applicant did not have a gun and claim that, perhaps, the investigating officer omitted it from his report because it conflicted with his conclusion.

13. Counsel offers his own sworn statement to the effect that the applicant did not receive adequate help during the processing of the case, that they had difficulty obtaining copies of the documentation and that the Army's response to a Freedom of Information Act (FOIA) request was neither timely nor complete.

14. The applicant's military records show that he was a sergeant with approximately 9 years of active duty service and was on an authorized pass at or about 0345 hours on 5 July 1998, when shot in the upper left thigh with a shotgun at very close range.

15. The LOD investigating officer took a sworn statement from the applicant on 10 July 1998. The remainder of the statements were unsworn (only some of them are signed) and were taken by the local sheriff's department.

16. In an 8 July 1998 statement the applicant's brother relates that he, the applicant and a female cousin (Veronica) had gone to the club in her car. They drank beer and shot pool. She left, they stayed and planned to walk home. The brother was outside the club, the applicant came out angry and upset because "some guy was messing with him" about the Masonic emblem on his cap. The applicant started to walk away from the club "as if he was going to go home." By the time the brother caught up to him the applicant was engaged in an argument with "some guys." The applicant was trying to get one of them to shake his hand, the brother tried to get him to just walk away and without any warning the applicant was shot. The brother threw himself on top of the applicant to prevent him being shot again. He "could hear more shots in the background." Someone came in a car and they took the applicant to the hospital. In supplemental statements on 13 July 1998 the brother admitted that he owned the nickel-plated .380 pistol, reportedly discovered where the applicant fell when he was shot. He related that, during the day on the 4th of July, he and the applicant had been shooting some guns, including the .380 pistol. He denied taking the gun with him to the club and had no knowledge that either the applicant or the cousin had done so.

17. In his initial statement C____ R____ denied that he had anything to do with the shooting and that he knew nothing about it except to say that, throughout the evening, the applicant had been threatening him and others with a gun.

18. R____ L____ C____ stated that the applicant had threatened several people with a 9mm or .380 nickel plated handgun. He admitted that he had a gun [shotgun] behind his back when the applicant put the nickel plated handgun to his chest and said "nigger show your hand." He shot the applicant because he believed that the applicant would shoot him whether he dropped the shotgun or showed it to the applicant. He did not intend to kill the applicant "only back him up."

19. J____ B____, the operator of the Yellow Tree Club, reported that he had not observed the applicant to have started or been involved in any disturbance. He reported that he heard three or four more shots. He usually frisked patrons at the club but had not frisked the applicant's party. During the course of the evening, he had observed both the applicant and his brother visit an automobile. After the shooting he had discovered the .380 handgun where the applicant had fallen. He gave it to the deputy.

20. F____ R____, the sister of C____ R____, reported that the "short dude" had a gun and that there was an argument. Besides her boyfriend and her brother she could identify only K____ and R____ C____ as having been present.

21. A____ A____ reported that when he heard a shotgun blast he thought of his cousin, who "had been into [it] with a guy" but he did not know who had done the shooting. The shotgun blast was immediately followed by other shots. He saw people with guns. "I seen R____ C____ running with a sawed-off." He thought people were beating up on his brother–in-law C____ R____.…And so…the dude had been shot that he had been into it with.…" He did not see the guy who had been shot with a gun. He continued, but it is unclear whether he was relating that he had been told that there had been an argument inside the club and that the applicant had a gun or whether he was saying that he had been asked to report that information.

22. K____ H____ related that two men walked down the hill outside of the club. They were behind C____ and one had a chrome like gun with a black handle in his right hand. They exchanged words with C____, he had the gun on C____. He put the gun in his pocket, then took it out again, and then they went back up the hill. K____ H____ then relates that R____ came over and he exchanged a few words with R____ and told C____ to get in the car. Then the individual with the gun and the one with him came back down the hill talking loud. He heard some loud talk and then the shot. In response to a question from the deputy, K____ H____ responded that the one with the gun was following C____. When he heard the shot he ran. He thought that his girl had been shot because she was stretched out in the car, then he realized that she was okay. After the big shot there was some more shooting. K____ H____ did not know who did any of the shooting. In a separate statement he confirmed that the individual who had been shot had displayed a gun.

23. Chief Deputy M____'s own narrative statement relates that they first arrested C___R____ but that A____ A_____ had reported that she had seen R____ C____ shoot the applicant with a shotgun. He reported that several witnesses gave differing accounts as to whether or not they had seen the applicant with a handgun. He received the .380 handgun from the operator of the Yellow Tree Club.

24. The 11 September 1998 LODI report states that there was a report of a conflict with another patron inside the club. Approximately 20 minuets later the applicant and his brother are immediately behind the person the conflict had been with. The applicant reported that the individual went into the trunk of a car although the applicant warned him not to do so. The shooter then passed behind the car, joined three other men and shot the applicant. On the other side, the investigating officer noted that at least three other individuals reported that the
applicant had a gun. The shooter related that the applicant threatened him with a gun and demanded that he "show your hand." He admitted shooting the applicant because he believed that he, himself, would be shot whether he dropped the shotgun or raised it to threaten the applicant.

25. The investigating officer noted that the reliability of many of the witnesses was questionable. He wrote:

Due to the lack of any unbiased witnesses and credibility of those present the details of the shooting are completely opposite from SGT O_____’s story and the other witnesses. Looking at the fact that SGT O_____’s own brother admits to taking a chrome-plated .380 pistol to the club, R_____ C_____ admitting he shot the man with the gun, J_____ B_____ (club owner) finding a chrome plated .380 pistol where SGT O_____ laid after being shot and turning it over to the sheriff, and J_____ O_____ identifying the gun in the sherriff’s possession as his, my conclusion is that SGT O_____ sustained his injuries without regard for personal safety due to misconduct on his behalf.


26. In a 30 July 2001 sworn statement the applicant's brother related that he "saw the shooter point a shotgun directly at my brother and fire several shots. The shooter was the only person who fired. My brother had done nothing at all to provoke this shooting." He relates that at the time of the incident he was carrying a handgun, which he did at all times for his own protection. The applicant was not aware that he had the gun. During the confusion the handgun had slipped from his pocket and he had not noticed. Earlier in the evening there had been an argument between the shooter and the applicant over a pool table. It is inconceivable that the argument could have provoked the shooting. He thinks that the shooter's brother-in-law picked a fight because he was drunk and that the applicant got shot because the argument was seen as a challenge to the gang. Since that incident he has learned that the shooter and the sheriff who supervised the investigation are friends. He believes that the outcome of the "investigation is more of a tribute to that friendship than to what really happened."

27. A 15 March 2002 advisory opinion from the Chief, Mortuary Affairs and Casualty Support Division, Total Army Personnel Command noted that Army regulation 600-8-1, Appendix F, Rule 7 provides that "Injury caused by wrongful aggression, or voluntarily taking part in a fight or like encounter, in which one is equally at fault in starting or continuing, is not in the line of duty." He noted that the LODI had been subject to three prior legal reviews and concurred with the finding of Not in LOD-Due to Own Misconduct. However, he also noted that according to paragraph 41-8d of the regulation the amputation of the leg due to infection should be viewed as a separate disease, "if the infection…was the ill effect of his treatment, anesthetic or surgery for the gunshot wound and not of the gunshot wound itself, the infection and amputation should be deemed to be in line of duty."

28. During the processing of this case an advisory opinion was also obtained from the Army Review Boards Agency's medical advisor. The opinion states that, because of the debris from clothing and other sources, shotgun wounds are notoriously dirty and contaminated and that infections are not unexpected and
that amputations are sometimes necessary. The provision of Army Regulation 600-8-1 that "The LD findings for an operation or treatment of an injury or disease generally will be the same as that required for the initial injury or disease" is quoted as being applicable in this situation.

29. In rebuttal, the applicant and his counsel argue that the infection that caused the amputation was not at the site of the wound but rather at the site of the surgery performed to try to stabilize the applicant's hip. They claim that infection at the former site was treated aggressively but that the infection at the surgical site was not, that it got out of control and ultimately resulted in amputation. They point out that there was no effort made to establish the cause of the amputation, that, in fact the LODI was completed and approved before the amputation occurred. They claim that the medical records are incomplete and offer the opinion of the applicant's attending surgeon, a Medical Corps major, who followed the applicant's cases since November 1998. This 21 December 2001 statement relates that "Looking back at the history of the loss of his lower extremity and the course of his treatment prior to arriving at EAMC (Eisenhower Army Medical Center, Fort Gordon, Georgia) it is possible that the loss of [the applicant's] leg is related to his developing infections in the thigh, which required multiple debridements and long courses of antibiotics. The loss of his leg was certainly not an expected outcome from a gunshot wound…."

30. They contend, in effect, that the Chief, Mortuary Affairs and Casualty Support Division's reference to the LODI being approved by three legal reviews is meaningless, if not misleading, because they have never been furnished all those legal reviews and that one of them was literally a rubber stamp. This 15 March 2002 advisory opinion was the first notice that they had received that the applicant's disability was considered to have been incurred not in LOD because it was alleged to have been "Injury caused by wrongful aggression." Additionally, they claim that this is unfounded because there is no indication of what specific statements are relied upon as the basis for this finding.

31. There is no current Army regulation governing LOD determinations. Part Five of the 18 September 1986 edition of AR 600-8-1 (Part Five), the most recent Army regulation that purported to govern LOD determinations, was superseded in 1994. When AR 600-8-1 was revised and reissued on 20 October 1994 as Army Casualty Operations/ Assistance/Insurance, the U.S. Total Army Personnel Command (PERSCOM) omitted LOD determinations. Although it appears that PERSCOM temporarily resurrected Part Five by message in 1995, that second life has since lapsed. Part Five, superseded but not replaced, is clearly no longer a regulation. Because the 1986 AR 600-8-1 has been superseded, Part Five of that edition is no longer available in the Army publications system. Despite the fact that the 1986 AR 600-8-1 is no longer in effect, many sources still consider Part Five to be the Army’s official LOD guidance. The provisions of Part Five are the last Army guidance on the subject of LOD determinations.
32. Part Five of the superseded regulation may be regarded as the Army’s policies and procedures for LOD determinations except where it would conflict with current statutes, directives, regulations and policies.

33. Paragraph 39-5 of Part Five states that LOD findings or determinations must be supported by substantial evidence and by a greater weight of evidence than 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. Paragraph 39-5b states that , “[u]nless refuted by substantial evidence contained in the investigation, an injury … is presumed to be in [the Line of Duty (LD)]."

CONCLUSIONS:

1. In order for the investigating officer to find that the applicant’s injuries were not incurred in the line of duty, but rather resulted from his own misconduct the evidence must clearly show that the applicant’s injuries were the proximate result of his own misconduct.

2. However, the LOD determination is not supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. All of the witnesses' statements are apparently self-serving. Many of the witnesses were accessories to the crime and also had close ties to the shooter. Many of the statements are contradictory and have an aura of having been rehearsed, or contrived to protect the shooter by putting forth a self-defense scenario. For example, K____ H____ described the gun in great detail, "a chrome like gun with a black handle in his right hand" yet most of the witness related that it was dark. Even the applicant's brother and the operator of the club had their reasons to be less than forthcoming. There is no proffered explanation to account for the .380 handgun being discovered by the club operator at the scene but after the fact and no effort was made to account for the fact that several witnesses reported several shots.

3. Finally, the LOD investigating officer's observation that there was a lack of unbiased witnesses and that those who were present lacked creditability ignores the statement of Z____ E____. Her statement is the only available evidence that is not obviously tainted by some association with the shooter. She saw a gun, she saw the shooting, but she did not see the applicant with a gun.

4. The Board concludes that the available evidence does not overcome the legal presumption that the applicant's injury was sustained in the line of duty and the determination should be changed.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was injured in the Line of Duty and his case should be forwarded to the Physical Disability Agency for disability processing.

BOARD VOTE:

__RVO__ __RTD__ ___KWL_ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                             _Raymond V. O'Connor, Jr.__
                                             CHAIRPERSON

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INDEX

CASE ID	AR2002067422
SUFFIX
RECON
DATE BOARDED	20010725
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT
REVIEW AUTHORITY
ISSUES 1.	122.01
2.
3.
4.
5.
6.