PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 20 MARCH 2003
         DOCKET NUMBER: AR2002075362


         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Christopher J. Prosser		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 his military records be corrected to delete his period of AWOL (absent without leave) between 1 July and 18 July 1999, that his line of duty investigation results be changed to “line of duty – yes” and that the reason for his separation be changed from “disability, existed prior to service” to “service connected.”

3. The applicant states, via a statement authored by his family, that the applicant was an outstanding soldier who was so proficient at his job that he was allowed to do “quota” work and then permitted to leave his place of duty for various periods of time when he achieved his specified quota. His family notes that the applicant was only five hours from “home” and would often travel that distance when he was not working.

4. They indicated that the applicant’s unit first sergeant would often contact the applicant while he was home if he was needed to return to duty and that the first sergeant had contacted the applicant on three different occasions between April and June 1999. They stated that the applicant was promised a “block” of leave in July providing he accomplished a certain amount of work.

5. The applicant’s family maintains that his request for leave in July 1999 was approved and then just days prior to his departure the leave was “pulled” without explanation. The applicant, who had been working long hours was “exhausted both physically and emotionally.” They maintain the applicant’s chain of command knew he could work long hours and would continue to do so if they “dangled the carrot of time off.” The family states that finally, over the 4^th of July holiday, the applicant came home.

6. They note that the unit knew how to reach him and that the applicant was “angry because they [members of his chain of command] were breaking the rules when it was convenient for them.” The family states that they were never notified, in accordance with Army regulations, that their son was AWOL, and that he was never reported as being AWOL.

7. They also questioned how he could have been reported as AWOL commencing on 1 July 1999 when that was the holiday weekend. Following the applicant’s accident on 18 July 1999, the family attempted to contact military officials and were unable to do so until a family friend interceded.

8. They noted that in spite of attempts to be present when their son was questioned as part of his line of duty investigation, their requests were ignored and as a result their son made a statement regarding the circumstances of the accident, which was neither true nor accurate. They presented various versions of the accident (essentially whether it resulted from mechanical problems, because the applicant had been involved in an argument, or because of some medical impairment), and arguments for or against each version. They maintain that the applicant’s statement should not be included as a part of the investigation package.

9. Ultimately, the family feels that their son was betrayed by his chain of command, that their actions contributed to the detriment of their son and aggravated his condition after the accident.

10. The family states that timelines for the processing of their son's line of duty investigation were not adhered to and that the entire process has “been a slow and draining process for us.” They note that because of the failure of his command, to obey regulations, their son, who was willing to give his life for our nation has been lost to them.

11. In support of their request they submit copies of documents associated with their son’s line of duty investigation and other documents, presumably extracted from information provided to them from the applicant’s service medical records and Official Military Personnel File, which they have annotated with their own questions and comments.

12. The applicant entered active duty on 24 January 1997 and on 8 February 1999 reenlisted for a period of 4 years. The applicant was a mechanic and metal worker. He was awarded an Army Commendation Medal in recognition of his meritorious service during the period 15 February 1999 through 1 April 1999, as a “member of the Raider Brigade Combat Team during National Training Center Rotation 99-05.” He was serving in pay grade E-4 at the time and was assigned to a unit at Fort Hood, Texas.

13. According to an undated leave request, submitted as part of the applicant’s petition to the Board, he was granted 16 days of leave commencing on 25 June 1999 and terminating 10 July 1999. The form also notes that he had 16 days of accumulated leave.

14. On 6 July 1999 a Department of the Army Form 4187 (Personnel Action) changed the applicant’s status from “present for duty” to “AWOL” effective 1 July 1999. The applicant’s unit commander authenticated the form, which was also included as part of the evidence submitted by the applicant.

15. On 18 July 1999 the applicant was involved in a “three-wheeler accident in the vicinity of Porter, Texas” and was transported to a local civilian medical facility in Houston, Texas. A Department of the Army Form 4187, authenticated on 25 July 1999 changed the applicant’s status from “AWOL” to “hospital” effective 18 July 1999. On 30 July 1999 he was transferred to Brooke Army Medical Center.

16. Included with the applicant’s petition to this Board was a copy of an 8 March 2000 Record of Proceedings Under Article 15, Uniform Code of Military Justice. The proceedings note the applicant was charged with AWOL between 1 July 1999 and 18 July 1999. The applicant indicated that he did not demand trial by court-martial and would present matters in defense, mitigation or extenuation in person. His punishment included reduction to pay grade E-1, forfeiture and extra duty. The applicant did not appeal the action.

17. At the time the UCMJ action was initiated the applicant’s pay grade was listed as E-4. In subsequent documents his pay grade was listed as E-3. However, on his separation document his pay grade was listed as E-4 with a date of rank of 1 September 2001. The applicant’s pay records were not available to the Board.

18. On 15 January 2000 a line of duty investigating officer concluded, based on the applicant’s AWOL status at the time of the accident, that his injuries were not incurred in the line of duty but were not due to his own misconduct. The line of duty investigation includes comments regarding the circumstances of the accident and references numerous medical documents. The findings and conclusions of the line of duty investigation were approved and on 20 June 2001 the applicant appealed the determination.

19. In the applicant’s appeal he argued that he had continually requested leave “from early to mid-1999” and that his last request, prior to his accident was “approved and subsequently pulled for no reason [he could] ascertain.” He indicated that he voiced his displeasure and told members of his chain of command that he was considering “leaving Fort Hood anyway from the beginning until the end of July.” He stated that his commander and first sergeant merely told him to leave a phone, and check in periodically, and that the first sergeant would attempt to have a leave approved retroactively.

20. He indicated that he was “aware that [his] unit had an unofficial policy for treating soldiers who would otherwise be considered AWOL as on leave” and as such believed that he would not be considered AWOL during his absence. He argued that his chain of command knew he was going to leave and if they believed that he was “about to go AWOL…it is reasonable to assume that they would have taken some preventive action.”

21. He maintains that the fact that the unit did not follow normal procedures for an individual who was AWOL (notification of military police and next of kin) supports his contention that he believed he was not AWOL. He states that the investigating officer’s conclusion that his accident was not in the line of duty was “insufficiently supported by the facts and is therefore legally insufficient.” He also states that the finding that he was “AWOL at the time of the accident is questionable at best.” In support of his appeal he submitted a copy of the investigation and statements from his parents.

22. On 27 June 2001 the applicant’s battalion commander noted that the applicant was AWOL at the time of the accident and non-concurred with the soldier’s appeal. The applicant’s appeal was denied and his line of duty determination of “not in line of duty” was finalized on 2 November 2001.

23. While the applicant’s line of duty determination was pending, his medical disability proceedings were suspended and subsequently terminated because they exceeded the processing timeframe. The applicant had undergone a medical evaluation board (MEB) in March 2001, which concluded that the applicant suffered from “cognitive disorder secondary to traumatic brain injury” and “left arm weakness secondary to hemiparesis and deconditioning status post ulnar fracture and clavicle fracture.” The evaluating physician recommended the applicant be referred to a physical evaluation board (PEB). The applicant concurred with the findings and recommendation of the MEB.

24. The initial informal PEB was held in June 2001 but subsequently administratively terminated in September 2001 while his line of duty determination was pending. A new informal PEB was held on 13 November 2001 and concluded that the applicant was unfit for continued service. However based upon his line of duty determination it recommended that the applicant be separated without disability benefits. The applicant did not concur with the findings and recommendation of the informal PEB but waived his right to a formal hearing and did not submit a written appeal. The PEB findings were ultimately approved on behalf of the Secretary of the Army.

25. On 1 March 2002 the applicant was honorably discharged. His separation document indicates that he was discharged by reason of “disability, existed prior to service, PEB” under the provision of Army Regulation 635-40, paragraph
4-24b(4). His separation code was recorded as “JFM.”

26. Army Regulation 600-8-1 states that any injury or disease incurred while the member is AWOL will be handled as not in line of duty unless the member was mentally unsound at the inception of the unauthorized absence. If there is no further misconduct shown other than AWOL, the correct finding is not in line of duty-not due to own misconduct. To establish that a person was AWOL for line of duty purposes, it must be shown that the member voluntarily left his or her unit or organization or other place of duty without proper authority.

27. 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.

28. Army Regulation 635-40, paragraph 4-24b(4) pertains to the separation of individuals by reason of physical disability without severance pay under sections 630, 1162(a), 1165, or 1169 of Title 10, United States Code. Those sections of Title 10 pertained to the separation of commissioned officers with less than 5 years of service, Reserve component soldiers, warrant officers during their 3 year probationary period, and enlisted soldiers prior to the expiration of their term of service. The more appropriate paragraph for the applicant’s separation was paragraph 4-24b(6) which pertained to the separation of soldiers for physical disability without severance pay when the disability was incurred during a period of unauthorized absence.

29. Army Regulation 635-5-1, which establishes the policy and provision for the assignment of reasons and separation codes to an individual’s discharge document notes that the reason for discharge, associated with individual’s discharged under paragraph 4-24b(6) is “Disability, Not in Line of Duty” and the appropriate separation code is “JFP.”

CONCLUSIONS:

1. Because the applicant’s injuries were determined to have occurred while the applicant was in an unauthorized leave status, the circumstances of the accident, whether it was mechanical error, the result of some impairment of the applicant, or whether he was angry at the time, is not relevant to the line of duty determination. The not in line of duty determination is based solely on the “status” of the applicant at the time of the accident. The finding “not due to own misconduct” is relevant to the circumstances of the accident and would not be considered an adverse finding. As such, the Board concludes that the applicant’s arguments regarding that situation are without foundation.

2. The Board notes that the applicant was an E-4, with more than 2 years of active Federal service, at the time he admits to having left his organization without an approved leave. The applicant admitted that he told his chain of command that he was considering “leaving Fort Hood anyway from the beginning until the end of July” and his parents stated that after the applicant’s leave was denied he came home “angry” because members of his chain of command “were breaking the rules when it was convenient for them.” Additionally, the Board notes that the applicant accepted and received nonjudicial punishment for the July 1999 AWOL period in March 2000, rather than demand trial by court-martial. All of these issues tend to support a conclusion that the applicant knew that his period of absence was unauthorized.

3. The documents available to the Board confirm that the applicant was placed in an AWOL status effective 1 July 1999 and was removed from that status when he was hospitalized on 18 July. 1 July 1999 was a Thursday and the “holiday” weekend would have been Saturday, Sunday, and Monday (3 through 5 July). The applicant’s commander authenticated the duty status documents. The fact that his unit may not have taken the specific actions required by regulatory guidelines to contact the applicant, the military police, or his next of kin following his unauthorized departure does not serve as a basis to excuse the applicant’s behavior which he knew, or should have known was wrong. The evidence clearly shows that the applicant voluntarily left his organization without proper authority, which is the standard used to determine whether an individual’s injuries were incurred or not incurred in the line of duty.

4. While the applicant contends that the policies of his unit to excuse absences were well known, that members of his chain of command only told him to leave a phone number where he could be reached while he was gone, and that his unit first sergeant told him that he would attempt to have the leave approved retroactively, these contentions are not supported by any evidence.

5. 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.

6. While the Board is certainly sympathetic to the applicant’s circumstance, 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. However, the Board does note that an incorrect regulatory citation, reason, and separation code, were entered on his separation document. The Board concludes that it would be appropriate to correct those erroneous items to show that the applicant was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(6), that the reason for his discharge was “Disability, Not in Line of Duty,” and that his separation code was “JFP.”

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was discharged under the provisions of Army Regulation 635-40, paragraph 4-24b(6), that the reason for his discharge was “Disability, Not in Line of Duty,” and that his separation code was “JFP.”

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__LLS___ __CJP __ __KWL__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Luther L. Santiful______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002075362
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030320
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.03
2.
3.
4.
5.
6.