MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002078119

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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 his Line of Duty Investigation (LODI), dated 30 May 1989, be corrected by changing the findings from "not in the line of duty-due to own misconduct" to "in the line of duty."

APPLICANT STATES: In essence, that he was not in an AWOL (absent without leave) status at the time of his accident on 24 February 1989; that his records only show him as AWOL from 13 July 1989 to 5 November 1989; that the period 24-27 February 1989 was a three day weekend; that he attended school Monday through Friday from 11:00-13:30 hours and that this was the end of his duty day. The applicant contends that the First Sergeant's sworn statement and the Platoon Sergeant's sworn statement are inconsistent. He submits in support of his request copies of both sworn statements and a sworn statement made by a Private First Class. All three sworn statements were made during the LODI in May 1989 and they are contained in the applicant's Official Military Personnel File. He also submits two pages from the Army Discharge Review Board's Case Report, dated 8 May 1992.

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

Prior to the period of enlistment under review, the applicant served honorably in the Regular Army (RA) from 8 May 1981-2 August 1984. He reenlisted in the RA on 3 August 1984 for 5 years and in pay grade E-4. On 4 September 1987, he was promoted to Sergeant, pay grade E-5, the highest rank that he achieved. On 22 March 1988, he was assigned to Fort Carson, Colorado.
Sometime on the afternoon of 24 February 1989, the applicant left his unit without being in an official leave status or on a pass, en route to Tulsa, Oklahoma, to assist his then pregnant wife by fixing the furnace in their home. In the vicinity of Slapout, Oklahoma, he fell asleep at the wheel of the car and sustained multiple injuries when the vehicle overturned and he was ejected from the car. He was cited by civilian police for speeding and for not wearing his seat belt. He was admitted to a civilian hospital and later transferred to medical facilities at Fort Sill, Oklahoma.

On 16 May 1989, a LODI was initiated at Fort Sill to determine whether the applicant's accident occurred in the line of duty. On 24 May 1989, the applicant's commander provided the investigating officer a sworn statement in which he indicated that the applicant had taken it upon himself to leave the immediate area of Fort Carson and the state of Colorado without permission. The commander also stated that the applicant was aware that he was required to have an approved leave or pass in his possession before leaving the state because he had gone through the process of obtaining such permission on a previous occasion.

The First Sergeant indicated in a sworn statement that, on the morning of 24 February 1989, Battery A, 26th Field Artillery (the applicant's unit), departed Fort Carson for Peterson Air Force Base (AFB), less than 20 miles away, to conduct air load training. The applicant remained behind so that he could attend school from 1100-1300 hours to improve his General Technical (GT) score. The First Sergeant instructed the applicant's Platoon Sergeant to inform the applicant that, although he was excused from training, he was to remain in the battery area until the unit returned from Peterson AFB. The First Sergeant stated that the applicant acknowledged that he understood this instruction. The applicant later informed the Platoon Sergeant that he had a physical therapy appointment whereupon the Platoon Sergeant instructed the applicant to go to his appointment and to return to the battery area. The First Sergeant states he was informed that the applicant was seen departing the battery area in civilian clothing between 1300-1400 hours. It was not until late in the evening on 24 February 1989 that the applicant's wife informed the unit that the applicant had been involved in an accident in Oklahoma. On Monday, 27 February 1989, the First Sergeant checked with the local clinics and he was informed that the applicant never had a physical therapy appointment.

The Platoon Sergeant indicated in his sworn statement that he gave the applicant permission to go to his physical therapy appointment at 1300 hours and instructed him to return to the battery area after the appointment. The Platoon Sergeant stated that he did not know if the applicant had any type of duty on the night of 24 February 1989 or if he was scheduled to perform any type of duty that weekend. The Platoon Sergeant stated that he was aware the commander's policy was that a soldier could not travel more than fifty miles away from the Fort Carson military installation without a pass or an approved leave, but he did not know if this policy was in writing.

On 30 May 1989, the investigating officer concluded the LODI indicating that the applicant's injuries were "not in the line of duty-due to his own misconduct" because the applicant left his unit without the proper authority and was, in effect, AWOL. On the same date, the investigating officer informed the applicant of the findings and advised him that he could appeal in writing or submit rebuttal evidence.

On 31 May 1989, the LODI was forwarded to the Fort Sill Staff Judge Advocate. On an unknown date, the findings were determined to be legally sufficient.

On an unknown date, the applicant provided the investigating officer an undated statement in which he indicated he was not aware that he needed a pass to leave the battery, since it was a three-day weekend. The investigating officer, after reviewing the applicant's rebuttal statement, still found the applicant's injury not to be in the line of duty.

The evidence available indicates that on 9 June 1989, nonjudicial punishment (NJP) was imposed against the applicant under the provisions of Article 15, Uniform Code of Military Justice, for misconduct. His punishment included confinement at hard labor for 7 days. The NJP proceedings are no longer contained in the available record, so it is not known whether the misconduct was for the period of AWOL from 24-27 February 1989.

On 19 June 1989, the appointing authority and the reviewing authority approved the findings of the LODI.

On 20 June 1989, the reviewing officer approved the findings. The completed LODI packet was forwarded to the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia.

On 23 June 1989, a Medical Evaluation Board (MEB) determined that because of the applicant's impending expiration of term of service (ETS) date and the potential for considerable long-term disability and the need for rehabilitation, it was in the best interest of the applicant and the Army to separate the applicant. The MEB recommended that the applicant be separated from active duty for medical reasons. He was never referred to a Physical Evaluation Board because he went AWOL. On 13 July 1989, less than 30 days before his ETS date, the applicant left his unit in an AWOL status.

On 6 November 1989, after the birth of the applicant's son and after assisting in the repair of his home, the applicant surrendered to military authorities at Fort Knox, Kentucky. On 14 November 1989, court-martial charges were preferred against him for the period of AWOL from 13 July-6 November 1989. On 15 November 1969, he consulted with legal counsel and requested separation under the provisions of Army Regulation 635-200. On 6 December 1989, his request was approved.

On 22 January 1990, the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with an under other than honorable conditions (UOTHC) discharge. On 18 June 1997, this Board upgraded the applicant's UOTHC discharge to an honorable discharge, but did not change the reason for discharge.

Army Regulation 600-8-1 (Army Casualty and Memorial Affairs and Line of Duty Investigations), dated 18 September 1986, in effect at the time, prescribed the policies and procedures for conducting a LODI. Pertinent portions of the regulation provide:

a. "Unless refuted by substantial evidence . . . , an injury, disease, or death is presumed to be in LD [line of duty]." Paragraph 39-5b, Part Five.

         b. In order to find that injury or disease were not incurred in the line of duty, the LODI investigating officer must show that such injury or disease was ". . . proximately caused by the member's intentional misconduct or willful negligence." Paragraph 39-5a, Part Five.

         c. "LD [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 . . . must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of fact . . . ." Paragraph 39-5c, Part Five. In effect, the LODI investigating officer's findings must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence must show that it is more likely than not that the investigating officer's findings accurately document how the disease, injury, or death occurred. This standard of proof is based on a "preponderance of evidence," and is less demanding than the "beyond a reasonable doubt" standard required in criminal proceedings.

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 applicant's LODI was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3. The LODI officer found that the applicant's injuries were "not in the line of duty-due to his own misconduct," because he was determined to be in an AWOL status at the time of his injuries.

4. The applicant intentionally committed misconduct when he left the state of Colorado without being in an official leave status or having in his possession a pass. He was, in effect, AWOL. Unit policy required a soldier be on leave or on pass in order to travel outside a 50-mile radius of Fort Carson.

5. There is no inconsistency between statements of the First Sergeant and Platoon Sergeant. Both sworn statements indicated that the applicant was to report to his appointed place of duty at the time prescribed [his appointment], then return to the unit area. Neither individual granted the applicant permission to leave the state of Colorado.

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

__jns___ __mhm___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078119
SUFFIX
RECON
DATE BOARDED	20030325
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19900122
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	122.0000
2.
3.
4.
5.
6.