MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 29 MAY 2003
         DOCKET NUMBER: AR2002073985

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Lester Echols		Member
Mr. Frank C. Jones II		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: In effect, that he be granted retirement under the Army's early retirement authority or that his line of duty determination be changed from not in line of duty to in line of duty.

APPLICANT STATES: In effect, that he was not informed early enough in his disability processing to take advantage of the Army's early retirement program, which expired on 31 December 2001. He also maintains that the facts developed in his line of duty (LOD) investigation did not support a LOD finding of "no."

The applicant states that he was involved in an accident at his home on 11 June 2000 and because there was evidence that he "may have been drinking alcohol that evening" a line of duty investigation was initiated. He states that following an investigation the LOD investigating officer concluded that he (the applicant) had fallen down the steps and that he "was intoxicated at the time of the incident." The applicant notes that originally the investigating officer ruled that his injuries were sustained in the line of duty but subsequently changed his finding to not in line of duty based on "Rule 3 of AR 600-8-1." He notes that he appealed the findings, stating that the investigating officer had not "established that any alleged alcohol ingestion caused [his] injuries…." He indicated that members of his chain of command supported his appeal but the appeal was ultimately denied. He maintains that the only evidence against him "was the blood alcohol test when [he] was admitted into the emergency room" and contends that it would be an injustice for him and his family to lose his retirement after 18 years of service because "of an alcohol-related accident in the confines of [his] home."

In the alternative, the applicant maintains that he should be allowed to retire under the Army's early retirement program. He states that although his accident occurred in June 2000, it was not until approximately August 2001 that a Medical Evaluation Board (MEB) was convened. He notes that the MEB was not finalized until 13 November 2001 and that an informal Physical Evaluation Board (PEB) convened on 15 November 2001. He states that the informal PEB found that he was physically unfit for continued duty but recommended a zero percent disability rating because of his LOD-NO finding. He states that because of the rating he elected a formal hearing. He notes that until this point he had not been advised about the early retirement provisions and was not informed of those provisions until early December 2001 when he was contacted by officials from Fort Sam Houston, Texas regarding his formal PEB hearing. He states he was told if he could submit a request for retirement under the early retirement program before 14 December 2001 it would be possible to staff the action and secure retirement before 31 December 2001, the termination date of the early retirement authority.





The applicant states that during this same period an officer elimination action was initiated against him based on two letters of reprimand that he had received for two earlier alcohol-related events. He states that he initiated his request for voluntary retirement on 13 December 2001 and characterized his request as a request for retirement in lieu of elimination action because he was told that it would not hinder his eligibility for the early retirement program. He states that his entire chain of command supported his request for retirement, in spite of the fact that the action was held by the commanding general of Fort Sill, Oklahoma until 26 December 2001. He notes that his request for retirement was rejected because it was not submitted in a timely manner and because the early retirement authority expired on 31 December 2001 and it would be impossible to retire him by that date. Additionally, he noted that it was rejected because he had requested a formal PEB, which was not scheduled to convene until
10 January 2002, and as such, his disability processing had not been finalized. He contends that he has been penalized because of "other's negligence" and had he known about the early retirement authority he would have pursued that avenue immediately and not requested a formal PEB.

The applicant maintains that "fundamental fairness and the loss of all benefits after 18 years of military service demand some amount of relief.” He states that the actions initiated by the Department of the Army leave him "after 18 years of service with nothing to show for [his] service” and that this will be a "tragedy for not only [him] but for [his] wife and children" who have supported and followed him all over the world.

In support of his request he submits a copy of his line of duty investigation, documents associated with his disability processing, his request for retirement in lieu of elimination, two letters supporting his request for relief by this Board, and extracts from his military personnel file detailing his military career.

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

He entered active duty on 1 July 1984 after being commissioned following completion of the Reserve Officer Training Corps program at Western Illinois University in Macomb, Illinois. He has served in a variety of field artillery organizations, including as a battery commander of a field artillery unit during the Persian Gulf War in 1991 where he was awarded a Bronze Star Medal. He has also been awarded two Meritorious Service Medals, three Army Commendation Medals, five Army Achievement Medals, and a Valorous Unit Award. He was promoted to captain in 1988 and to major in November 1995.





The applicant exceeded course standards while attending his basic and advanced courses and was assigned to the Commandant’s List in each course. His performance evaluation reports, with the exception of a report rendered in August 2000 following his June 2000 accident, were all extremely laudatory and he was consistently rated above center of mass in the top block.

In September 1998 the applicant was given a general officer memorandum of reprimand for giving false statements to his chain of command. The incident arose from a motor vehicle accident in which the applicant "after consuming alcohol in a local bar, ran into the rear of a vehicle that was stopped at a red traffic light." The applicant failed a field sobriety test at the scene and when questioned about the incident "falsely stated" the location where he had been drinking. He ultimately reported this falsehood in a written statement. The memorandum noted that although the applicant's "falsehood was apparently motivated by [his] embarrassment arising from the actual location of [his] drinking, it raises questions about [his] integrity in general, and more specifically about the truthfulness of the rest of [his] account of the events” that occurred on 26 July 1998. In his rebuttal the applicant stated that if his "commander had questioned my statement at the time or when the question arose, I feel it should have been his obligation to ask me exactly where I was." He maintains the memorandum was the chain of command going "out of its way to find a fault with [him] and reprimand [him] for an isolated incident" after the charges were dismissed by court. His rebuttal was considered by the imposing general officer who then directed that the memorandum of reprimand be filed in the applicant's Official Military Personnel File (OMPF). In December 1999 the applicant petitioned to have the memorandum moved to the restricted portion of his OMPF. His petition was denied.

In April 2000 the applicant received a second general officer memorandum of reprimand after running a red light and failing a blood alcohol test. In his rebuttal the applicant indicated that on the advice of counsel he would not specifically address the allegations against him but did note that he had referred himself to the Army Drug and Alcohol Program. He states that he "realized [he] had what has been a problem for [him] for quite some time." He also asked that his 16 years of military service be considered in the filing determination. The imposing general officer considered the applicant's rebuttal and directed that the memorandum be filed in his OMPF.

On 7 July 2000 a Department of the Army Form 2173 (Statement of Medical Examination and Duty Status) was prepared noting that the applicant had been





admitted to Reynolds Army Community Hospital, Fort Sill, on 12 June 2000. The report indicated that the applicant had fallen "asleep after drinking, woke up and was going upstairs when he fell down stairs injuring his right ribs and head o/a [on or about] 11 June 2000 at home in Lawton, OK." The reporting official indicated that permanent total disability might result. The applicant's commander determined that a formal line of duty investigation was required.

An investigating officer was appointed on 25 August 2000.

The investigating officer noted, based on an interview with the applicant, that the applicant had no recollection of the fall which took place on 11 June 2000 and that his last memory before the fall was 3 June 2000. The investigating officer indicated the applicant's spouse was home at the time of the accident but did not witness the fall. She reported in an interview that she recalled the applicant "had been drinking mixed drinks during the afternoon and evening of 11 Jun 00." At approximately 2345 she noted that her husband was on his way upstairs when she heard a "loud thud/thump" and found her husband lying on the floor at the bottom of the staircase. She indicated that he was behaving normally and did not appear to be injured "although he did not try to walk upstairs to the bedroom." She reported that he "crawled/scooted" to a chair in the living room and fell asleep on the floor next to the chair. At 0600 hours the following morning (12 June 2000) she awoke and noted that her husband was having difficulty getting up from the floor and after drinking some water she noticed his neck was beginning to swell and he was breathing heavy. She called for an ambulance at approximately 0900.

The investigating officer noted that the applicant was transported to Reynolds Army Community Hospital Emergency Room where he arrived about 1000 hours on 12 June. He noted that lab work taken in the emergency room indicated the applicant's blood alcohol content as 92.2 (normal range is considered 0 to 50.0)

Although the investigating officer noted in his written report that "no one witnessed [the applicant] wrongly using or mistreating alcohol in his quarters" and that "although alcohol was involved in this accident, it can not be clearly determined that is [sic] was the contributing factor in the fall” of the applicant. His final finding was that the applicant's injuries were incurred "not in line of duty–due to own misconduct."

The appointing authority, (the commander of the 30^th Regiment) disapproved the investigating officer's finding, but the approval authority approved the "not in line of duty-due to own misconduct" finding noting the provisions of Rule 3, Army Regulation 600-8-1.



Rule 3, Army Regulation 600-8-1 states 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. The fact that the member may have a pre-existing physical condition, which caused him to be susceptible to the effects of the drug, does not excuse such misconduct.

The applicant was notified of the determination, provided a copy of documents associated with the investigation, and informed that he could make "any statement relative to the origin, incurrence, or aggravation of [his] injuries."

In his 25 January 2001 response the applicant noted that in order for the accident to be considered not in the line of duty, it "must be the result of intentional misconduct or willful negligence." He noted that when he tripped down the stairs it was "obviously not an intentional act" and "was not willful negligence…" He maintained that the fact that he had alcohol in his body should not lead to the assumption that alcohol was the cause of the accident since he had "previous medical concerns." He concluded that he did not have an excessive amount of alcohol, and it did not cause his accident. He also stated that the alcohol test from the blood taken at the hospital should not have been used in the investigation because the lab report "specifically states on the lab report that these results are not for legal purposes."

The assistant commandant of the United States Army Field Artillery School at Fort Sill supported the applicant noting that the "incident was a tragic event" but that it was clearly "debatable whether the level of intoxication caused the accident or not." He noted that it "did not cause harm to anyone other than himself and his family" and that a not in line of duty finding would subject the applicant and his family to financial hardship.

On 30 January 2001 the formal line of duty investigation finding was determined to be "not in line of duty–due to own misconduct" by the final approving authority. The applicant was advised that he could appeal the adverse findings within 30 days.

On 27 February 2001 the applicant submitted an appeal which was authored by his legal advisor. In the appeal the applicant's legal advisor argued, in effect, that the investigating officer had not proven that the applicant's injuries resulted from a fall as a result of alcohol. He noted that no tests were done in the applicant's quarters, and that the "thud/thump" heard by the applicant's spouse was inconsistent with a fall down the steps. He indicated that the assumption that the applicant would not have fallen at his quarters had he not been drinking was not




supported by the investigation. He stated that it was his understanding from the applicant and his spouse, that they had a rug at the top of the steps that served as a runner for the hallway. It noted that the rug was on the floor the evening of the applicant’s accident and that it was not secured by any sort of tape or non-slip device. He contends that the possibility existed that when the applicant “hit the rug, it slipped out from under him, the rug could have been buckled and he inadvertently fell over, or some other item could have been in the way that he fell over.” He also argues that the blood alcohol test conducted at the hospital was for "purposes of emergency medical treatment" and that the test very clearly states the "the test results should not be used for medical-legal purposes." The applicant was supported in his appeal by the commanding general of the United States Army Field Artillery Center and Fort Sill, who noted that "the line of duty determination in this case does not give adequate recognition to the fact that alcoholism is a disease" and that it was "blatantly unfair to punish [the applicant's] family by denying them the benefits and privileges they would have been eligible for were his injuries found to have been incurred in line of duty."
A 16 March 2001 legal review by an administrative law attorney at Fort Sill concurred with the investigating officer's findings and recommended the applicant's appeal be denied. He noted that the arguments of the applicant's attorney were, in effect, without foundation, and cited various segments of the regulation to support his conclusions. He noted specifically that the argument that the blood alcohol report should not be used was without merit because an adverse line of duty determination was "an administrative determination and not a punitive, or judicial action." He also noted that the regulation required that "copies of…hospitalization or clinical records…shall be attached as exhibits…when appropriate." The reviewing legal official also stated that there was no evidence of any other cause, let alone a superceding cause, responsible for the applicant’s fall and resulting injuries. He indicated that it is “mere speculation that he [the applicant] tripped on a rug that he would have tripped over had he been sober, even though he had apparently walked over it numerous times in the past without incident.”

By order of the Secretary of the Army, on 13 July 2001, the applicant's appeal was denied and the finding of "not in line of duty–due to own misconduct" was reaffirmed.

In September 2001 the commander, United States Army Total Personnel Command, initiated elimination action against the applicant. The notification memorandum indicated that the applicant had been identified by the FY01 lieutenant colonel promotion selection board to "show cause for retention on





active duty…because of misconduct, moral or professional dereliction." The September 1998 and April 2000 memorandums of reprimand were cited as the specific reasons for elimination. As a result of the elimination action a suspension of favorable personnel actions was also initiated.

On 18 October 2001 a Medical Evaluation Board recommended the applicant be referred to a Physical Evaluation Board. The narrative summary, prepared as part of the MEB proceedings, noted the applicant's chief complaint as "cognitive and short-term memory difficulties, depressed mood, as well as mild gait disturbance status post closed head injury on 11 Jun 00." The summary indicated the applicant was initially hospitalized from 12 June 2000 until 25 June 2000 and was subsequently referred to medical officials at Walter Reed Army Medical Center. The MEB ultimately concluded that the applicant suffered from alcohol addiction, cognitive disorder not otherwise specified due to traumatic brain injury, anxiety disorder not otherwise specified, and depressive disorder not otherwise specified. Each of his diagnoses were listed as "LOD: No" (line of duty: no). The summary noted the applicant was unable to perform at his prior level of function due to traumatic brain injury, that he had residual cognitive defect, was unable to drive, operate heavy equipment, load, aim or fire any weapon, and that he was unable to instruct at the artillery center which had been his prior duty.

The applicant concurred with the findings and recommendation of the MEB on
13 November 2001.

An informal PEB convened on 15 November 2001 and found the applicant unfit for continued duty. It found, however, that his alcohol addiction (medical diagnosis number one) was not unfitting. The PEB recommended the applicant be discharged without disability benefits based on the findings of not in line of duty. The applicant did not concur with the findings and recommendation of the informal PEB and on 26 November 2001 demanded a formal hearing.

The applicant indicated in his application to the Board that his formal hearing was scheduled on 10 January 2002. Information obtained from the Army Physical Disability Agency indicated the applicant waived his formal hearing on
10 January 2002.

On 13 December 2001 the applicant initiated a request for voluntary retirement in lieu of elimination. He cited the September 2001 elimination action from the United States Total Army Personnel Command as the basis for his request. He noted in his request that he had over 17 years of service and was eligible for retirement under the Temporary Early Retirement Authority (TERA). He included a copy of the informal PEB findings with his application. The applicant's chain of command supported his request.

The applicant indicated in his application that his request for voluntary retirement was denied because it was not submitted in a timely fashion and because the TERA expired on 31 December 2001. However, a copy of the retirement denial was not available to the Board, or provided by the applicant.

On 16 August 2002 the Department of the Army Board of Review for Eliminations met and recommended that the applicant be retained on active duty without reassignment. On 19 August 2002 that board’s recommendation was approved. This completed the applicant’s administrative elimination process, which was initiated in September 2001 as a result of the FY01 lieutenant colonel promotion selection board’s “show cause” action.

The applicant was discharged on 13 September 2002 by reason of physical disability without entitlement to benefits under the provisions of Title 10, United States Code, Section 1207.

Army Regulation 600-8-1 states that line of duty determinations are essential for protecting the interests of both the individual concerned and the United States Government, where service is interrupted by injury, disease, or death. Formal line of duty investigations must be conducted for injuries or death involving the abuse of alcohol or other drugs. A formal investigation is a detailed investigation conducted by an appointed officer who appends appropriate statements and other documentation to support his or her findings, which are then submitted to the general court-martial convening authority (GCMCA) for approval. The GCMCA acts as the final approving authority for formal line of duty investigations in the name of the Secretary of the Army.

The regulation notes that line of duty 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. It states specifically that the investigating officer should include copies of pertinent hospitalization or clinical records, and when relevant, the results of any blood, breath, urine, or tissue test for the intoxicating agent.

It states 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. Rule 3, Appendix F, of Army Regulation 600-8-1 states 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 includes the effect of the drug on the member’s conduct and thought process, as well as the physical effect on his body. Any erratic or reckless conduct caused by the effect of the drug, which directly causes his injury or disease is misconduct. Additionally, Rule 4 notes that while the mere drinking of alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to as high a standard of conduct as one who is sober.

Public Law 102-484, the FY93 Defense Authorization Act, was enacted on October 23, 1992. Section 4403 of that law gave the Military Departments the authority to permit early retirement of selected military members with more than 15 but less than 20 years of service who agreed to be registered for employment in public or community service organizations. The TERA was originally an additional tool to effect the drawdown of military forces through October 1, 1999 but was subsequently extended through 31 December 2001. The purpose of the early retirement program was to provide a temporary management tool to reshape the Army and was offered only to officers who met strict eligibility requirements. In FY99, 00, and 01 Department of the Army did not offer the TERA.

Nevertheless, Department of Defense Instructions 1332.38 states that soldiers who are being separated for physical disability who have 15 but less than 20 years of service and whose unfitting conditions are not due to the soldier's intentional misconduct or willful neglect or incurred during a period of unauthorized absence shall be afforded the opportunity to elect separation for physical disability or to apply for, and if approved, non disability retirement under the temporary early retirement authority (TERA) under title 10, United States Code 3911. This authority also expired on 31 December 2001.

Army Regulation 635-40 states that a commissioned officer will not be referred for disability processing instead of elimination action that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.

Title 10, United States Code, Section 1207 states that each member of the armed forces who incurs a physical disability that, in the determination of the Secretary concerned, makes him unfit to perform the duties of his office, grade,




rank, or rating, and that resulted from his intentional misconduct or willful neglect or was incurred during a period of unauthorized absence, shall be separated from his armed force without entitlement to any benefits under this chapter.

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. Because the applicant’s injuries were determined to have been incurred as a result of misconduct, the applicant was not eligible for early retirement under Department of Defense Instructions 1332.38, regardless of when he submitted his application. As such, the Board concludes that the applicant’s arguments regarding that situation are without foundation.

2. The Board notes that while the applicant and his legal advisor argued in his appeal of the LOD determination that there was the possibility of an alternative cause for the applicant’s fall, they have not provided sufficient evidence which would serve as a basis to “establish a degree of certainty so that a reasonable person is convinced of the truth or falseness” of that alternative. The Board notes that the applicant’s spouse, who was the first to see the applicant on the floor following his fall, never noted, in her statement, any other objects in the applicant’s path which might have caused his fall or that the “rug” was disturbed in anyway. Rather the Board notes that the applicant’s spouse merely asserted that the applicant was “behaving normally” and then allowed him to fall asleep on the floor next to a chair. She admitted that the applicant had been drinking and her actions tend to indicate that even she presumed that his fall was the result of his intoxicated condition. If he were not intoxicated a more reasonable response would have been to help him up off the floor or summon medical attention.

3. The Board notes that the evidence clearly indicates that the applicant’s blood alcohol level was still significantly elevated more than 10 hours after his fall which tends to support a conclusion that the applicant was in a highly intoxicated state at the time he fell, sustained his injuries, and then fell asleep on the floor. The Board concludes that blood alcohol lab results provide sufficient evidence, which serves as a basis to establish “a degree of certainty that a reasonable person” would be convinced that applicant’s fall and subsequent injuries were the result of his intoxication.

4. The Board concludes that the applicant’s line of duty determination was processed in accordance with appropriate laws and regulation, he was given the





opportunity to appeal the determination, and on further review the determination was reaffirmed. The Board notes that the applicant has not presented any new evidence which would refute the basis of the line of duty determination.

5. While the Board agrees that the applicant’s situation is tragic, it cannot be swayed by the argument that the applicant should be treated more sympathetically because the alcohol-related accident occurred in the ”confines” of his home. Rather, the Board contends that the applicant’s conduct can not be excused merely because it occurred in his home, but maintains that he should be held to the same standards of conduct as an individual who becomes intoxicated, gets into a car, and injures another individual. The Board’s sympathies should not be dictated solely because no one else was hurt.

6. 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 that requirement.

7. 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

__LLS __ __LE____ __FCJ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073985
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030529
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.03
2.
3.
4.
5.
6.